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.

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

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

Are Employees Covered when they leave the state? Maybe Not!

You have a workers’ compensation policy that covers your employees. So when your employee travels for work, you assume that they are covered should they be injured while “on the job”. Assuming wrong, and you may be opening up your own checkbook. Where the employee goes to, and how long they are there, does have barring on if your employee’s injury is covered.

On Monday, March 12th, 2018, I posted my monthly Legal Corner blog post about recent case rulings that impact employers when it comes to HR & Safety Compliance as well as Workers’ Compensation. After every blog post I usually receive a dozen or so calls or emails from people that were looking for more information on the subject of the post, however, in this post’s case, I have received a hundreds of questions, from employers to insurance agents, stemming from one specific Workers’ Compensation Case Law Ruling in that Legal Corner post.

Here is the case I referenced: Employer discovers lower quote does not mean same coverage when out of state accident is not covered – Indiana

Custom Mechanical Construction (CMC) is an Indiana-based mechanical contractor but is authorized to do business in Kentucky. Since its establishment in 2005, it had used the same insurance agent and the same carrier for workers’ comp. In 2015, the agent solicited bids from other carriers and secured a $3,000 lower quote. The company claims that it was led to believe that the coverage was the same. When a CMC worker was injured on a job in Kentucky, the carrier filed suit in a federal trial court in Indiana seeking a judicial determination that its policy does not cover claims from Kentucky. CMC counterclaimed that the carrier wrongly and unreasonably denied coverage, and that the broker is liable for failing to procure adequate coverage. The judge found that CMC had no viable claim for bad faith nor negligence and that the broker was not an agent of the carrier. Accident Fund Insurance Co. of America v. Custom Mechanical Construction.

So, does a workers’ compensation policy have a coverage territory/travel restriction? The answer is yes/no.

The Employers Liability portion of the policy provides coverage for suits brought in the USA, its territories or possessions, or Canada. Sounds fair, and aligns with your business auto and general liability policy definitions of a coverage territory. If you are doing business only in the USA and Canada, you might think you are OK. If your employee travel outside of the USA and Canada, even for a day, you need to make sure you have Foreign Voluntary Workers’ Compensation Coverage, and should also make sure you have appropriate liability coverages as well.

However, the Workers’ Compensation portion of the policy does not define a territory, so that sounds even better does it not?  Not really. It does something that should cause all employers to ask more questions. A Workers’ Compensation policy provides statutory coverage for an employer for the specific state(s) listed in 3. A. on the declaration page of the workers’ compensation policy. So two little, abbreviated letters, in one big, multi-page policy actually defines where you have coverage

If you have physical locations in MD, NY and PA, and MD, NY, and PA are listed in 3.A. of your policy, you think you are all set. But what if your employee travels to NJ, VA, DC, NY or OH?

What if you have a telecommuter that works from home in another state? What if you have a employee that lives in OH but works from your PA location, but then travels back into OH for business purposes? This is where things actually get confusing.

With 50 states, and several territories including PR & DC, explaining all possible variations would cause this to be an extremely long blog post, so I am not about to address every issue. Therefore, I am going to point out the key issues you need to look into to make sure you are properly covered. The best thing to do, is to ask questions.

  • Effective Date of the Policy – The workers’ compensation policy defines that you have coverage for the states listed in 3.A. of the declaration page.  It also defines that if on the effective date of the policy.  If you have employee(s) working in another state not listed in 3.A. on your actual renewal date, or have an ongoing operation in another state, you do not have coverage in that state during the remainder of that policy year. It does have a provision to allow you 30 days from the effective date to inform the insurance company.  If you forget, you have an issue.
  • With 50 states, and several territories including PR & DC, each state and territory has their own rules. The two key provisions you need to understand are:
    • Extraterritoriality – what your state’s workers’ compensation laws allows in terms of coverage when an employee leaves the covered state.  A state may provide coverage for an unspecified period of time, or it might allow for a limited number of days such as 30 or 90 days.  If you meet the extraterritoriality provisions, your employee may be covered when out of the covered state
    • Reciprocity – is whether or not the state’s workers’ compensation laws, of the state that the employee is in when injured, allows allow the your policy to provide coverage for the employee in that state while there.  A state’s law may allow another states coverage to ally for an unspecified period of time, or it might allow for a limited number of days such as 30 or 90 days, or not allow any coverage to extend to that state.  Therefore, if that state does not allow your coverage to extend to the state, you would need to add that state as a covered state in 3. A.
    • For example, due to OH reciprocity with PA, a PA based construction employee can work in OH for up to 90 days in any 12 month period before the employer would need to purchase OH workers’ compensation coverage for that PA employee. (Note: an OH BWC employee has recently told me this is now 30 consecutive days.) However, if that PA employee travels to a NY jobsite, even for a day, the employer would need to purchase NY workers compensation due to the NY reciprocity rules.  A similar rule applies to an construction employee going to work in FL.
  • All States Endorsement – Many employers believe they have coverage in every state as some insurance agents leave them to believe that since there may be a provision that says something like “all other states…” is listed in Other States Coverage of 3.C. on the declaration page.  There is no such thing as a “All States Endorsement”. If you look at it closely, at best, it will state “All other states except 3.A and monopolistic states”. Plus, once again, with 50 states, and several territories including PR & DC, each state and territory has their own rules.
    • Other states (“3.C.”) coverage allows the your workers’ compensation policy to comply with the statutory benefits required by the other state where an employee is injured but in which you do not currently have on-going operations, and do not plan to have on-going operations during the policy period.  If you did, doing so would require that state to be scheduled as a primary coverage state in 3. A. Employees injured while working in a listed 3.C. state will receive the benefits under that state’s law if made necessary by law or court decision. Basically, the workers’ compensation policy responds and pays benefits in listed 3.C. states just as if the state was scheduled under 3.A.
    • Monopolistic States – OH, WY, WA, ND – are states that the only way to provide coverage in that state in section 3 of a policy is by purchasing coverage from that state’s workers’ compensation bureau.  No insurance company can provide coverage in those state, however, your states’ extraterritoriality or that monopolistic state’s reciprocity may allow for temporary coverage.
    • However, do not assume that if a state is listed in 3.C. that you have coverage as the listed state my not allow that due to reciprocity rules.  I point out once again, that NY will require a contractor to have NY in 3.A., and not 3. C. for even 1 day of work.
    • Although there might be a small charge on your policy, listing your bordering states, or ones you frequently travel to, might be a good idea.
  • Telecommuting employee – if you have an employee that lives and works from home in another state, although you as an employer do not have a physical location in that state, you do have an ongoing operation in that state.  Therefore, you need to add that state to your policy and list it in 3.A.
  • Employee Residing out of state – you may have an employee that lives in one state, and commutes to your state to work.  If they are injured in your state (listed in 3.A.), than your workers’ compensation policy will respond.  However, if that employee needs to travel back into their state of residency for business purposes, most likely their state’s laws will supersede your state’s laws, or the employee may chose to file for that states benefits especially if they are higher than in your state.  Either way, you may need to have coverage in any state that an employee both resides and works in.
  • Subcontractors
    • Should you hire a subcontractor that is based out of another state, you need to make sure that they have coverage in your state.
    • If you are hiring a subcontractor to work for you at a job in another state, you need to make sure you have coverage in 3.A of that state.  If that subcontractor somehow ends up not having workers’ compensation coverage, you as the hiring “general” contractor would be responsible to provide the statutory coverage in that state.

I cannot spell out every variable that you may be thinking of when it comes to your operations and employee travel, the main point of this post is help to create more awareness that you should not assume that your workers’ compensation will cover your traveling employees. You should speak with a Certified WorkComp Advisor, or an experienced agent, and make sure you get your answers in writing.

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

Things you should know

The importance of contractor selection and oversight

The Chemical Safety Board has published a new Safety Digest highlighting insufficient safety requirements in contractor selection and oversight. The digest summarizes separate CSB incident investigations and recommendations from 2007 and 2011 in which the agency concluded that inadequate contractor selection and oversight contributed to a combined 10 fatalities and four injuries.

New hazard alert and toolbox talk on opioid-related overdose deaths in construction

In an effort to raise awareness of opioid-related overdose deaths among construction workers, the Center for Construction Research and Training, CPWR, has published a hazard alert and toolbox talk on the topic. The hazard alert and toolbox talk are available in English and Spanish

ISEA/ANSI 121-2018 first in the industry to address tethering practices

The International Safety Equipment Association (ISEA) and the American National Standards Institute (ANSI) developed the first industry standard to reduce the risk of dropped objects in industrial and occupational settings. The standard, ANSI/ISEA 121-2018, American National Standard for Dropped Object Prevention Solutions, sets the minimum design, performance, labeling, and testing requirements for tethering practices.

The standard contains four active controls, which are:

  • Anchor attachments
  • Tool attachments
  • Tool tethers
  • Containers (buckets, pouches)

ISEA/ANSI 121-2018 is available online from ISEA.

CSB issues investigation update, animated video on Wisconsin refinery explosion, fire

The Chemical Safety Board has released an update of its investigation into an April 26 explosion and fire at the Husky Energy refinery in Superior, WI, as well as an animated video that explores the cause of the incident.

State News

California

  • The Labor Enforcement Task Force (LETF) issued 26 orders shutting down unsafe machines or operations at workplaces it inspected during the fiscal year 2017-2018 and found that 93% of businesses inspected were out of compliance with labor laws.

Florida

  • The National Council on Compensation Insurance (NCCI) is recommending a 13.4% decrease in rates, the second straight year that the rating organization has recommended a reduction in the state.

Illinois

  • Governor vetoed a bill that would have amended workers compensation law in relation to fees and electronic claims.

Minnesota

  • Department of Commerce has approved a 1.2% increase in the overall average pure premium level, effective Jan. 1.

Nebraska

  • Workers’ Compensation Court has redesigned its website, offering the Google platform for forms and distribution of court news. Previously bookmarked links to the court’s website will no longer work, so users are encouraged to delete their old links, then find the updated pages and bookmark them for future use.
  • Hospitals and insurers may now file diagnosis-related group (DRG) reports through the Workers’ Compensation Court’s web application.

North Carolina

  • Industrial Commission announced a $36 increase in the maximum weekly workers’ compensation benefit, starting Jan. 1. The maximum benefit will rise from $992 for this year, to $1,028.

Tennessee

  • The NCCI has proposed a statewide reduction of 19% for average voluntary market loss cost levels. By industry, contracting saw the greatest decrease of 20.7%, office and clerical was next at 20.6%, goods and services at 19.7%, manufacturing at 18% and miscellaneous at 16.8%. The new rates, which are under review, would become effective March 1, 2019.

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

Legal Corner

ADA
Failure to accommodate is costly for employers

In Equal Employment Opportunity Commission, Linda K. Atkins v. Dolgencorp L.L.C., dba Dollar General Corp., a federal appeals court affirmed a jury verdict of more than $277,000 to a former diabetic Dollar General worker. She worked the register and was often alone, so she could not leave her station when she experienced a low blood sugar episode. Her manager refused to let her keep a bottle of orange juice at her register, so when she had an attack she took a bottle of juice from the store cooler and drank it, later paying the $1.69 she owed for each bottle and told her manager.

She was fired for violating Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it. The appeals court affirmed the jury awards of $27,565 in back pay and $250,000 in compensatory damages, and the court awarded her lawyers $445,322 in attorney’s fees and $1,677 in expenses. The jury found Dollar General failed to provide reasonable alternatives to keeping orange juice at her register.

In Stanley Christie v. Georgia-Pacific Co., Ace American Insurance Co., director, Office of Workers’ Compensation Program, the 9th U.S. Circuit Court of Appeals in San Francisco awarded permanent total disability to a man who injured his back working for a large paper company that failed to prove that they provided the employee with adequate accommodations after returning to work. While the company assigned him to a less-demanding warehouse position, the position required some lifting, which was difficult for him.

When he learned that the company was eliminating its early retirement program, he decided to retire because he did not feel he could work in pain for another six years. About two years later, his treating physician said he had reached maximum medical improvement, and he filed a claim seeking permanent total disability benefits under the Longshore and Harbor Workers’ Compensation Act, for which he was eligible.

The DOL’s Benefits Review Board, denied the claim, arguing his loss of wages was due to retirement, not the work injury. A three-judge panel of the 9th Circuit unanimously reversed, noting that his inability to work pushed him to retirement and the company had failed to provide suitable alternative work and had not documented any accommodations.

Workers’ Compensation
Injured worker cannot sue utilization reviewer – California

In King v. Comppartners, Inc., an utilization reviewer denied a treating physician’s request to continue prescribing Klonopin, a psychotropic drug, for an injured employee. The injured worker argued that the reviewer owed him a duty of care and had caused additional injuries by denying the request without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. When he stopped taking the medication, he suffered four seizures.

The case found its way to the state Supreme Court, which found that utilization reviewers, in performing their statutory functions, effectively stood in the shoes of employers. As such, they were provided with the same immunity from tort liability as employers.

Safety consultant owes duty of care – California

In Oscar Peredia et al. v. HR Mobile Services Inc., parents filed a wrongful death claim against HR Mobile Services Inc., a workplace safety adviser for the employer of their son, who died in a work-related accident. The 5th District Court of Appeal found that HR Mobile agreed to assist the employer in carrying out its workplace safety obligations, and accepted a role in conducting safety inspections and safety training. As such, it can be held liable for injuries the third party suffers as a result.

Public employer can fire an injured worker who cannot perform essential job functions – Massachusetts

In Robert McEachen v. Boston Housing Authority (BHA), a carpenter for the Boston Housing Authority was injured and placed on FMLA and medical leave. About a year later, a termination hearing was held with the union and the employee and it was concluded that “he is unable to return to work and cannot perform the essential functions of his job.” The employee did not disagree and argued he could return to work in a modified duty capacity, supervising other carpenters. Such a position did not exist.

When he was terminated, he appealed to the Civil Service Commission, which upheld the BHA decision, noting the employee was unable to perform the essential functions of the job. A three-judge panel of the state appellate court affirmed.

Decision not to use handrail nixes comp claim – Minnesota

The Supreme Court ruled that an employee who fell down a flight of steps while at work is not due workers compensation because she chose not to use a handrail. In Laurie A. Roller-Dick v. CentraCare Health System and SFM Mutual Cos., the employee was leaving work, carrying a plant with both hands,when she fell down a flight of stairs and fractured her ankle. While she argued that her shoe stuck on the non-slip treads on the stairs, the compensation judge held that the injury did not arise out of employment because she failed to establish that the stairs were “more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling as she descended them.”

While it was true that failure to use the handrail increased her risk of falling, there was no work-related reason not to use the handrail. The Workers’ Compensation Court of Appeals overturned the judge’s ruling, arguing that stairs in the workplace are inherently hazardous. However, the Supreme Court disagreed and reinstated the ruling of the compensation judge.

Teacher cannot sue school for injuries incurred when breaking up a fight – Minnesota

In Ekblad v. Independent Sch. Dist. No. 625, the 8th U.S. District Court of Appeals ruled that workers’ comp exclusive remedy bars a teacher from suing the school after he was seriously hurt breaking up a student brawl. The employee argued negligence and negligent supervision as well as failure to provide a safe workplace and a lenient policy toward minority students’ violent misconduct.

The court found that none of the three relevant exceptions to the exclusive remedy provision – the assault exception, the intentional act exception, and the co-employee liability exception – applied in this case.

Employer rebuts 100% industrial loss because employee has marketable skills – Mississippi

In Bridgeman v. SBC Internet Services, a worker suffered a compensable injury, was unable to return to his job that involved climbing utility poles, and he was terminated by his employer. Under law, there is a presumption of 100% industrial loss when the worker proves he can no longer perform his usual employment. This presumption is rebuttable, if the employer can prove the employee could earn the same wages in another position.

If the employer successfully rebuts the presumption, the employee will not recover for a 100% industrial loss of use, but receives a recovery based on the greater of his losses from the medical impairment or the industrial loss-of-use rating. Since the employer presented evidence that the employee had a computer science degree, had been a teacher, and could perform medium to heavy work, an appeals court upheld lower court decisions that granted a 50% industrial loss of use of his arm.

Subject-matter jurisdiction can be challenged at any time – North Carolina

In Burgess v. Smith, a young woman who sold cleaning products door-to-door was killed in a single car accident, driven by her co-worker. Her mother filed a wrongful death suit against the driver and her employer and neither responded to the summons. A trial judge entered a default judgment against the defendants for more than $2 million. Five months later, the employer filed a motion to set aside the default judgment, arguing that she was an employee (although he argued earlier she was an independent contractor) and that the superior court lacked jurisdiction over the claim.

The court of appeals overturned the superior court judge denial, noting that subject-matter jurisdiction may be challenged at any time, even after the default judgment. The court remanded the case with instructions for the judge to determine if there was an employer-employee relationship.

Employee cannot sue employer for failure to provide a stress-free environment – North Carolina

In Jones v. Wells Fargo Co., a former employee argued that the bank and her supervisor failed to provide her with a safe working environment free from mental stress or anxiety and aggravated a pre-existing mental condition, which they knew about. While she argued that the exclusive remedy of workers’ comp did not apply because of “egregious and extreme conduct,” the court disagreed.

Parking lot injury compensable – Pennsylvania

In Piedmont Airlines v. WCAB (Watson), an airline employee fell into a pile of snow in the employee parking lot and broke his finger. The employee parking lot, which was owned and operated by the Department of Aviation, required an identification card for entry and the employer had issued one to the employee.

The Commonwealth Court noted that when an injury does not take place while performing job duties, it is compensable if the injury occurred on the employer’s premises, the worker’s presence on the premises was required by the nature of his employment, and the injury was caused by the condition of the premises or by operation of employer’s business. The court found that all three factors were met and, therefore, the injury was compensable.

Failure to accept modified duty means benefits can be adjusted – Pennsylvania

In Pettine v. WCAB (Verizon Pennsylvania), an employee was struck by a car when marking the road and suffered compensable injuries. He later requested that the claim be expanded to include his back and shoulder. When he declined an offer of a modified job that met his physical restrictions, vocational background, and geographical area, Verizon sought to modify his benefits.

The case went through several appeals, but in each case, the employee’s petition was denied and Verizon’s was granted.

Compromise & Release (C & R) agreement may not be used to avoid paying third party fees – Pennsylvania

In Armour Pharmacy v. Bureau of Workers’ Comp, the terms of a settlement included that the company pay for all necessary medical treatment. Many years after the injury, the company requested a Utilization Review (UR) of a newly prescribed topical cream, which was determined to be reasonable and necessary treatment.

The company then entered into an agreement with the employee that stated its liability for his medical expenses did not include any past, present or future costs for any compounded prescription cream. Several months later, the employee filled another prescription for the same cream, and the company refused to pay the more than $6,000 bill.

The court explained that the C & R bind each other, but cannot release them from liability to an entity who is not a party, in this case, the pharmacy. An employer can challenge a provider’s treatment as neither reasonable nor necessary, only through UR, and the company had not challenged the second prescription.

Benefits for volunteer firefighter overturned – Pennsylvania

In East Hempfield Township v. WCAB, a long-term volunteer firefighter was diagnosed with cancer four years after taking the job with the township. Several years later he filed for workers’ compensation benefits, asserting that his cancer had been caused by his exposure to carcinogens while volunteering for the township.

The case went through several appeals with varying decisions related to whether adequate notice of the claim had been properly given. The burden of proof is on the worker to show that notice was issued within 120 days of the injury, or the date upon which he knew, or should have known, he had a potential claim.

While the employee was diagnosed years earlier, he argued he did not know of the causal link between his cancer and firefighting and filed within 120 days when he received a doctor’s letter noting the connection. The Commonwealth Court found that the relevant inquiry was not when the employee actually knew of the work-relatedness of his injury, but rather when he should have known the work-relatedness through the exercise of reasonable diligence. The case was vacated and remanded.

High court upholds total disability award for trucker with pre-existing degenerative disc disease – Tennessee

In Wesley David Fly v. Mr. Bult’s Inc. et al., the Special Workers’ Compensation Appeals Panel with the Supreme Court affirmed a circuit court ruling that a trucker’s total disability was caused by a workplace injury, not the pre-existing degenerative disc disease, which was discovered at the time of the injury. The court noted that the law requires employers to “take an employee as he is,” and “all reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the employee.”

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

Things you should know

Opioid spending down but topical medications up

A report by Coventry Workers Comp compared its 2017 data on managed claims, representing 77.6% of total comp prescriptions, and unmanaged claims. Overall drug utilization in comp was down in 2017 – especially in opioids and compounds medication, an overall industry trend – with 5.9% drops in managed claims and 7.4% in unmanaged claims.

However, topical medications prescribed in the unmanaged category of claims jumped 9.8%, compared with a 6.5% drop in the managed category. This was driven by “high-dollar, private-label topical analgesics marketed directly to physicians’ offices… contributing to the significant rise in unmanaged topical utilization per claim – demonstrating the need for continued focus on moving these transactions.”

Safety standard for wind turbine workers

The American Society of Safety Professionals has published the first U.S. industry consensus standard written specifically for the construction and demolition of wind turbines.

White paper suggests Medicare Set Asides greatly inflate costs

A new white paper produced by Care Bridge International, suggests that conventional Set Aside practices greatly inflate costs to claims payers, by as much as doubling the cost. The company is a data analytics firm, that uses a massive claims database to estimate the true exposure of future medical treatment and costs in Medicare Set Asides for workers’ compensation claims.

Health care workers, PPE and infection control: Study finds failures to follow protocol

Health care workers may be contaminating themselves and their work environments by neglecting to use personal protective equipment and follow preventive protocols, according to a study from researchers at the University of Michigan and the University of Utah. The study was published online June 11 in JAMA Internal Medicine.

CPWR offers skin cancer prevention tips for outdoor workers

Workers who spend all or part of their days outdoors have an increased risk of developing skin cancer, the Center for Construction Research and Training (CPWR) cautions in a recently released hazard alert.

Highly repetitive work in cannabis industry increases risk for musculoskeletal disorders

Employers in the marijuana industry should provide safeguards to protect workers from repetitive stress injuries, NIOSH states in a recently released Health Hazard Evaluation Program report.

European Commission adopts new rules on pilot mental health requiring airlines

Three years after the Germanwings crash in which a pilot deliberately flew a jet into a mountainside, the European Commission has adopted new rules on pilot mental health requiring airlines for the first time to carry out a psychological assessment of pilots before they hire them.

States bolster whistleblower protection

An analysis by watchdog group Public Employees for Environmental Responsibility (PEER) found that most states have expanded their whistleblower protection laws over the past 12 years, including 10 states that have done so in their most recent legislative sessions. The PEER analysis includes a report card detailing where all the states rank in different categories.

State News

California

  • Cal OSHA stronger enforcement has led to more citations and higher fines. In 2016, it inspected 813 businesses, finding 93% of them out of compliance, issuing 2,736 citations, 15% of them serious, all totaling $2.5 million in fines – nearly double the amount for the same number of citations from two years earlier.
  • Although workers’ compensation insurance rates have dropped 22% since 2014, the state still has the highest rates in the country, representing one-fifth of the premium collected nationwide with only 11% of the national workforce, according to a report released recently by the Workers’ Compensation Insurance Rating Bureau.

Indiana

  • A new procedure for submitting settlement documents to the Workers’ Compensation Board took effect Aug. 1 and will become mandatory Sept. 1. All settlement agreements and proposed orders, as well as supporting documentation, should be submitted to WCB electronically in a PDF format. WCB has provided a checklist of elements that should be included, or not included, in settlement documents.

Pennsylvania

  • The Governor introduced opioid prescription guidelines in a booklet to “help health care providers determine when opioids are appropriate for treatment of someone injured on the job.” It is one of 11 guideline booklets on the subject.

North Carolina

  • After three years of litigation, the new ambulatory surgery center fee schedule became effective June 1. The new rules.

Tennessee

  • Strict new claims-handling standards took effect Aug. 2, the first revision to the standards since they were enacted almost 20 years ago. The new rules will require greater attention to detail, better communication with injured workers, and low error rates on electronic data submissions.

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

Legal Corner

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

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

Things you should know

Utility sector workers at higher risk of serious injuries: Study

Employees in the utility sector are at higher risk for serious injuries and fatalities than workers in other industries such as construction, manufacturing and mining, according to a study conducted by workplace safety consultancy DEKRA North America Inc. Water utilities have the highest SIF exposure rate at 42%, followed by electric utilities at 32%, and gas utilities at 29%. Overall the utilities sector has a 32% SIF exposure rate, which is seven points higher than the all-industry SIF rate of 25%. Motor vehicle incidents were responsible for most hazards at 30%, followed by line of fire or struck by incidents at 28%.

Older construction workers at increased risk for hearing loss: study

More than half of former construction workers have experienced hearing loss, and smoking, noise, and solvents can exacerbate the condition, according to a recent study by the Center for Construction Research and Training (CPWR).The researchers found that 58 percent of the former construction workers had some form of hearing loss and those who worked for more than 30 years were nearly four times more likely to experience hearing loss than workers with fewer than 10 years on the job.

The researchers recommend that prevention efforts center on reducing worker exposure to noise, solvents and smoking. The study was published Feb. 28 in the American Journal of Industrial Medicine.

Treatment costs for injured workers vary widely by state: Study

Prices paid for a similar set of medical services varied significantly across states, ranging from 26% below the 35-state median in Florida to 158% above the 35-state median in Wisconsin in 2017, according to a study released by the Workers Compensation Research Institute (WCRI). The study compares medical prices paid in 35 states and tracks price changes in most states over a 10-year span from 2008 to 2017.

States without fee schedules for these services had higher prices paid compared to states with fee schedules (39 to 168 percent higher than the median of states studied with fee schedules in 2017).They also found changes in prices paid for professional services varied across states, from a 17 percent decrease in Illinois to a 39 percent increase in Wisconsin.

Guide intended to help workers deal – or help others deal – with depression

The Canadian Institute for Work and Health has published a guide intended to assist workers who experience depression or support those coping with it. IWH states that the guide is applicable “to the entire workplace regardless of sector or role,” including individuals with depression, managers, co-workers, human resources staff, union representatives and worker representatives.

New CSB fact sheet outlines safe practices for hot work

The Chemical Safety Board recently released a fact sheet that offers several best practices for staying safe when performing hot work.

American Chemistry Council creates PPE infographic for auto refinishers

In partnership with OSHA, the American Chemistry Council has published an infographic to encourage workers in the automotive refinishing industry to wear the correct personal protective equipment.

NTSB releases tip card on fatigued driving in commercial bus industry

The National Transportation Safety Board has released a safety tip card aimed at reducing fatigue among commercial bus drivers. The card – designed to be stored above a driver’s visor – highlights issues of fatigue in transportation and its effects, as well as lessons learned from crash investigations. It offers tips for both drivers and bus company operators.

State News

California

  • State Compensation Insurance Fund has reduced the number of opioid prescriptions for injured workers by 60% to 23.7 million since launching its opioid-reduction program in 2014.
  • Cal/OSHA reminded employers to closely observe their employees for signs and symptoms of heat illness and instruct workers to take preventative cool-down breaks in the shade as temperatures rise.
  • Workers’ Compensation Institute said there was little change in the number of independent medical review determination letters and decisions issued in the first three months of 2018 compared to the first quarter of 2017.
  • The maximum temporary total disability benefit will increase nearly 3%, to $1,251.38 per week from $1,215.27 effective Jan. 1, 2019, per the California Division of Workers’ Compensation.

Georgia

  • Starting this month, the Board of Workers’ Compensation will begin phase two of its integrated claims management system, which utilizes new electronic data interchange standards. The board will soon grant access to insurers, self-insured employers, group funds, and claims adjusters to learn how to use the system. Watch the website for details.

Indiana

  • The workers’ compensation board has released new application forms and guidelines for self-insurers, and the agency is urging employers to make sure they complete the form in full or they will not be approved.
  • Workers’ Compensation Board put practitioners on notice that it expects to adopt a new protocol for submitting settlement agreements in the next 30 to 45 days. In the meantime, it asked that practitioners start using its new checklist to prepare settlements for submission for board approval.

Illinois

  • Beginning July 2, all parties in workers’ compensation claims cases will receive notice through electronic means and the Workers’ Compensation Commission is urging injured workers, attorneys, and employers to submit email addresses. Attorneys and injured workers representing themselves can submit email addresses with a form available at the commission’s website. Even if a party already has an address on file with the agency, the commission is building its database anew and asks that email addresses be submitted again.

Michigan

  • The application form, Form WC-104C for mediation and hearing requests was revised to make it easier to list additional parties involved in the case.

New York

  • Workers’ Compensation Board is proposing a medical fee schedule that would increase payments by 5% overall, which would affect medical, podiatry, chiropractic, and psychological treatment. This would be the first increase in fees since 1996.
  • The New York Assembly passed a bill that would let acupuncturists be reimbursed for treating injured workers.

Tennessee

  • The average total cost per workers’ compensation claim decreased 6 percent in 2015, reflecting in part the impact of reforms enacted in 2013, according to a WCRI study.

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

Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

In Medina v. Berwyn South School District 100, N.D. Ill., a school district employer that terminated an administrative employee who recently returned from FMLA leave for major depression and generalized anxiety disorder did not violate the ADA or the FMLA, according to the U.S. District Court for the Northern District of Illinois. When she returned to work she shared an office with two other administrative assistants and when asked by the principal to translate a letter argued it was difficult to concentrate and she had too many other things to do.

When she met with the principal, she was told she was insubordinate and, feeling anxious, called her therapist who told her to call an ambulance. After hanging up on 911 twice, she placed the call and when leaving on the gurney she yelled at the principal and assistant principal in front of the students. Her doctor sent a note asking to place her on medical leave, but the district conducted an investigation and decided to terminate her due to misconduct.

She filed suit claiming she was discharged because of her disability, but the court found “when an employee engages in behavior that is unacceptable in the workplace… the fact that the behavior is precipitated by her mental illness does not present an issue under the Americans with Disabilities Act; the behavior itself disqualifies her from continued employment and justifies her discharge.”

 

Adverse action against an employee over the fear that the employee will develop a disability nixed by court

An applicant received a conditional offer of employment from Burlington Northern Santa Fe pending a medical evaluation, among other things. The company believes that hiring individuals for a safety sensitive position who have a body mass index of 40 or greater, pose a significant risk for diabetes, sleep apnea, and heart disease. While the applicant had none of these, his BMI was 47.5.

The company withdrew the offer and the applicant sued under the ADA. The company and the court agreed that the applicant was not disabled by his obesity, but the U.S. District Court, Northern District of Illinois found that there were triable issues as to whether the company treated him as if he were a “ticking time bomb” who at any time could be unexpectedly incapacitated by obesity-related conditions.

While the company pursued a business necessity defense, the court found it was impossible to determine whether it was truly necessary to exclude individuals with Class III obesity from safety-sensitive positions. Shell v. Burlington Northern Santa Fe Railway Co.

 

Workers’ Compensation
Supreme Court defines Independent Contractors – California

In a groundbreaking decision, Dynamax vs The Superior Court of Los Angeles County, the Supreme Court rejected “The Borello test,” a ten-point test which was used as a standard test for employment and applied the much narrower three factors of the ABC test: i.e., to show that a worker is free from its control, performing work outside the usual course of its business, and customarily engaged in independent work.

This case was decided for the purposes of the state’s wage orders, and not directly related to workers’ compensation, but many speculate it sets the stage for more workers being designated as employees.

 

Benefits for treatment from physician not approved by employer denied – Georgia

In Starwood Hotels & Resorts v. Lopez, the Court of Appeals overturned a judge’s order awarding an injured worker payment for treatment by the doctors she selected without the approval of her employer. The employee slipped and fell and initially went to one of the approved facilities and was diagnosed with an elbow fracture. When she returned to work, the hotel had changed management and she was assigned to a less physically demanding position, but stopped working because of continued pain and sought treatment from her own physicians. When she filed for reinstatement of her TTD benefits, Starwood requested a hearing to determine if it was liable for additional benefits.

An ALJ determined that Starwood’s hearing request had effectively been a challenge to her claim, which entitled her to choose her physician. After a series of appeals with different results, the Court of Appeals found Starwood’s hearing request was not the same thing as denying benefits, but the TTD award was appropriate.

 

Medical providers can’t charge interest on late workers’ comp claims – Illinois

In Medicos Pain & Surgical Specialists S.C. and Ambulatory Surgical Care Facility LLC. vs Blackhawk Steel Corp, the medical providers sought to recover $37,229 in interest under the Workers’ Compensation Act for long-awaited payments related to care for an employee who fell four stories off a truck in 2010. In overturning the trial court’s ruling, the appellate court found that even though the Workers’ Compensation Act provided for interest payments, the medical service providers are not members of the class for whose benefit the Act was enacted. It noted this type of dispute belongs with Illinois’ Workers’ Compensation Commission, and not in the courts.

 

Carrier’s subrogation rights upheld in spite of alleged misconduct – Illinois

In Estate of Rexroad v. Mid-West Truckers Risk Mgmt, the court ruled that a carrier’s right to reimbursement is “absolute,” and cannot be denied because of alleged wrongdoing. When there is a recovery available from third parties who are responsible for the injury, “fairness and justice require that the employer be reimbursed for the workers’ compensation benefits he has paid or will pay.”

 

Spider bite compensable – Illinois

In Jeffers v. State of Illinois/Tamms Correctional Center, an educator worked in a classroom at a correctional center that was not open to the public and was known to have pest problems in the past. She was bit and diagnosed with a brown recluse spider bite and treated with antibiotics, pain medication, and steroids.

While an arbitrator denied benefits, the Commission reversed, noting the educator was exposed to a greater risk of encountering insects and spiders at the prison than that of the general public.

 

Employee definition in Independent Contractor statute does not apply to workers’ compensation – Massachusetts

The Supreme Judicial Court ruled the state’s independent contractor statute does not determine employee status for workers’ compensation benefits. The reviewing board of the Department of Industrial Accidents noted that the law governing employment relations in the state is far from uniform.

The case involved a newspaper delivery service that pays delivery agents to distribute the newspapers to subscribers. The agent had signed several contracts, indicating she was an independent contractor, was allowed to subcontract her deliveries, supplied all her own materials, purchased and collected independent contractor work insurance, and filed her taxes as an independent contractor.

To determine whether a worker is entitled to wage and hour protections, minimum wage or overtime, a three-prong independent contractor test is applied, but whether a worker is entitled to workers’ compensation depends on an analysis of twelve factors.

 

Employer cannot be ordered to reimburse for medical marijuana – Michigan

In Newville v. Michigan Department of Corrections, the workers’ compensation magistrate found that a correction officer’s injuries were sustained as a result of altercations with inmates, and prescriptions for Oxycodone, Fentanyl, and medical marijuana for back pain were reasonable and necessary. However, pursuant to the workers’ compensation law and the Medical Marijuana Act, the magistrate cannot order the employer to reimburse for the cost of medical marijuana, even though the worker’s use of marijuana helps reduce his use of prescribed opioids.

 

Failure to adequately train employee trumps employee’s violation of safety practices – Missouri

In Elsworth v. Wayne Cty., an employer sought a reduction in comp benefits because an employee had failed to wear a seat belt or safety hat. An 18-year-old employee had been on the job less than a month when the dump truck he was driving overturned, leaving him in a vegetative state for the rest of his life. In making its decision, the Commission determined that the employer had not adopted any training program and had not monitored employee compliance with any rules.

 

Supreme Court upholds statutory benefits for Mesothelioma claims – Missouri

A constitutional challenge to a 2014 statutory amendment that allowed workers to collect a lump-sum payment of benefits if they develop occupationally caused mesothelioma was rejected by the Supreme Court in Accident Fund Insurance Company; E.J. Cody Company Inc. v. Robert Casey, Dolores Murphy. In Missouri, employers have the option of accepting liability for occupational diseases under Section 287.200.4 or taking the risk of defending against a civil suit. In this case, the employer accepted liability and insured the risk.

The Supreme Court ruled that the statute providing the enhanced benefits is not unconstitutionally retrospective. As such the widow and the eight adult children were entitled to benefits. Section 287.200 is unlike other workers’ compensation provisions in that it does not condition a child’s recovery upon dependency status.

 

Increase in impairment and level of disability necessary for a change in benefits – Nebraska

In Moss v. C&A Industries, a laborer employed by a temporary agency suffered serious injuries when a crane dumped a load of iron on him and he has not worked since. After there were complications from his first knee surgery, he was found to be permanently and totally disabled. Later, the court approved a right knee arthroplasty, noting the altered gait from the left knee surgery caused the injury.

When he sought a modification of benefits, the court found under Nebraska law a worker must show a change in impairment (physical condition) and disability (employability and earning capacity). Since there was no change in disability, the appellate court said the compensation court erred in modifying his award.

 

Withdrawal of partner does not nullify Workers’ Comp coverage – New York

In Matter of Smith v Park, a father and son operated a farm business as a partnership and subsequently, the father withdrew. A minor-aged boy was killed in an accident and his mother argued that there was no insurance in effect at the time. However, the appellate court ruled that a change in partners did not void the workers’ compensation insurance policy, nor the carrier’s acceptance of liability for the death of a teenage employee.

 

Injured employee cannot sue employer’s alter ego entity – New York

In Buchwald v. 1307 Porterville Road, an Appellate Court ruled that an employer’s immunity from civil suit is extended to the employer’s corporate alter egos. The employer had formed two single-member-owned LLCs on the same day for the purpose of running a horse farm. One entity owned the property and leased it to the other entity, which employed the injured worker. According to the court, an entity can establish itself as the alter ego of an employer by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity and, in this case, they integrated or comingled assets, had the same insurance policy, and were jointly operated. Since the real estate owner was the alter ego of the employer, it was also protected by exclusive remedy.

 

Fatal heart attack compensable in spite of health risk factors – New York

In Matter of Pickerd v. Paragon Envtl. Constr., Inc., a construction worker suffered a heart attack while assisting a coworker with the removal of an underground gasoline tank and died three days later. He was a smoker and had high cholesterol and there was conflicting testimony from physicians as to what caused the heart attack.

In awarding benefits, the appellate court noted the decedent’s work need not be the sole agent of death; it was sufficient if it was only a contributing factor.

 

Smoking break injury not compensable – North Carolina

A city employee, working on a utility crew, smoked his first e-cigarette during a lunch break in a city truck at a gas station and had a coughing fit. He stepped out of the truck, passed out, and injured his right hip, back, and head and could not return to his former position. He was diabetic and had not been taking his meds.

The case went through several appeals and, in each case, the court determined he was not eligible for benefits. His fall was due to underlying medical conditions and his personal decision to smoke. It was neither work-related nor dictated by his employer.


For new employee unexpected weight of box makes lifting injury compensable – North Carolina

In Doran v. The Fresh Market, Inc., et al.,a cheese specialist had worked in his position for nine weeks, and he described his job as routinely involving lifting boxes up to 25 pounds. He injured his shoulder and arm when he lifted a box that had no weight displayed and was heavier (40 lbs) than he thought. While the company argued against benefits, noting that a new worker would “basically have no regular routine,” the court observed that new conditions of employment don’t become part of a worker’s regular course of procedure until he “has gained proficiency performing in the new employment and become accustomed to the conditions it entails.”

 

Coming and going rule nixes foreman’s benefits – Pennsylvania

In Kush v. WCAB (Power Contracting Co.), The Commonwealth Court ruled that an electrical foreman was not entitled to workers’ compensation benefits for his injuries from a car accident that happened while traveling to a job site. He worked for two employers and managed multiple jobs during the day. Typically, he drove directly from his home to his assigned job site.

While managing nine jobs, he suffered injuries in a car accident driving to a job site where he had worked almost exclusively the week leading up to the accident. Compensation was denied based on the “coming and going rule” and upon appeal, the foreman argued he had no fixed place of employment and his employment contract covered travel time, exceptions recognized under the rule. However, the Commonwealth Court upheld the denial, noting he had a fixed place of employment because he was reporting to the same location each day until the project was complete and he was not paid for travel time.

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