EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.


Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.


National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.


CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.


New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.


Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.


Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.


FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.


Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.


Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News

California

  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.

Florida

  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.

Illinois

  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.

Minnesota

  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.

Pennsylvania

  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.

 

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

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

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

Legal Corner

FMLA
Appeals court overturns jury verdict in favor of employer

In Cassandra Woods, Tina Hinton v. START Treatment & Recovery Centers Inc., Addiction Research and Treatment Corp, the 2nd U.S. Circuit Court of Appeals in New York reversed a jury verdict in favor of the employer in a Family Medical Leave Act (FMLA) case. According to the court the judge had wrongfully instructed the jury to apply the “but for” cause of her termination, that she would not have been terminated if she had not taken FMLA leave.

On appeal, Ms. Woods argued that she only had to establish the FMLA leave was a motivating factor in her termination, which is a lower standard. The court agreed, citing a U.S. Department of Labor rule that interpreted the statute in this way. The case was remanded for further proceedings.

Workers’ Compensation
Employer must pay $3.64 million in additional premiums based on audit classifications – federal

Aviation ground services company Servisair L.L.C., which is now a subsidiary of Cheshire, England-based Swissport S.A. L.L.C., contracted with Liberty Mutual Insurance Co. for a guaranteed cost insurance policy in which the final premium would be determined based on an audit of Servisair’s payroll classifications at the end of the policy period. The estimated premium was based on payroll information submitted by the company, which, according to Liberty Mutual, was knowingly over allocated to the inexpensive clerical classification.

The company refused to pay and argued that the policy was a product of a mutual mistake about the premium calculations and that the policy’s premium calculation provisions were ambiguous. The US District Court in Houston and the 5th U.S. Circuit Court of Appeals in New Orleans disagreed.

Exclusive remedy nixes remaining claims in NFL painkiller lawsuit – federal

A federal judge in California dismissed three remaining claims from a wide-reaching lawsuit filed by players alleging mistreatment with medications because the players had previously sought relief through workers’ compensation. The lawsuit argued that the underlying claims should be exceptions to workers’ compensation exclusivity because they were triggered by intentional acts by the teams, team doctors and trainers.

Second appellate court rules that untimely IMRs are valid – California

Recently, the 3rd District Court of Appeal (DCA) issued an unpublished decision in Baker v. WCAB (Sierra Pacific Fleet Services), agreeing with the decision of the 2nd DCA in California Highway Patrol v. WCAB (Margaris). “The interpretation of Section 4610.6, subdivision (d), as directory rather than mandatory is consistent with case law and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges,” the 3rd DCA said.

Decision overturning total disability benefits limits to 104 weeks applies to case pending at the time – Florida

In June 2016, the Supreme Court (Westphal decision) ruled that terminating disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement is unconstitutional. In Ft. Walton Beach Medical Center/Broadspire v. Young, the question is raised whether the ruling applies to a case that was appealed the month before the ruling was issued. The 1st DCA noted the claims were filed in 2014 and 2015 while the Westphal decision was pending in the appellate court. The Supreme Court accepted jurisdiction of Westphal in December 2013, so its ruling applies to this case.

Ex-farm employee’s agricultural work precludes workers’ comp benefits – Indiana

In Charles O’Keefe v. Top Notch Farms, an employee drove a semi-truck and tanker and did a variety of other jobs on a farm. He was injured when he was picking up liquid fertilizer and the tanker overflowed. The injured worker argued that he should be considered a truck driver, not an agricultural employee exempt from the Workers’ Compensation Act. However, the Workers’ Compensation Board and the Court of Appeals disagreed, noting it must exam the “whole character” of the work to determine if it is agricultural in nature, so maintenance work is not categorically non-agricultural. His work as truck driver, granary sweeper, painter and truck washer, collectively, was agricultural in nature.

Undocumented worker placed on unpaid leave after filing workers’ comp claim may have a retaliatory case – Minnesota

In Sanchez v. Dahlke Trailer Sales, a divided Supreme Court held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him because he sought workers’ compensation benefits. The employer argued it was not a discharge – the worker was placed on unpaid leave until the worker could show that his return to employment would not violate federal immigration law. However, the worker argued the company had long known and accepted his undocumented status. The Court also found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016).

General contractors must provide workers’ comp for all subcontractors – Mississippi

In Builders and Contractors Association v. Laser Line Construction Co., the Supreme Court ruled that Mississippi Section 71-3-7 requires general contractors to purchase workers’ compensation coverage for the employees of subcontractors, even if the subcontractors are exempt from a requirement to hold workers’ compensation coverage themselves.

Appeals court narrows compensability of horseplay – Missouri

In Hedrick v. Big O Tires, the Court of Appeals upheld the denial of benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday. It noted that the worker’s ignition of the glue was not an accident and that it is the accident, and not the injury, that must be the prevailing factor in causing both the resulting medical condition and disability. Even if the extent of the injuries from the “non-accident” is more serious than expected, it does not warrant coverage.

Pre-existing asthma condition insufficient for relief from Special Disability Fund – New York

In Matter of Murphy v. Newburgh Enlarged City Sch. Dist., the court found that the employer had failed to demonstrate that a preexisting asthma condition hindered, or was likely to hinder, an injured worker’s employability. The court ruling was consistent with earlier decisions, which had held that preexisting conditions that are controlled by medication generally do not constitute a hindrance to employability.

Home health care services must be paid to injured worker, not spouse – New York

In Matter of Buckner v. Buckner & Kourofsky, LLP, the court found it was an error for the Workers’ Compensation Board to directly pay the wife, who was authorized to provide some home health services to her hemiplegic and wheelchair bound husband. Citing multiple earlier decisions, the appellate court held the award must be paid to the worker.

Construction worker independent contractor, not employee – North Carolina

In Bentley v. Jonathan Piner Construction, a construction worker printed business cards in the name of Bentley Construction and Maintenance, placed a decal on his truck with the company name, started a website to advertise the business, hired his own crew, set their hours, and used many of his own tools when working on various jobs. He and some of his crew were hired by a subcontractor to do framing work. The subcontractor offered to pay the business for the work, but was asked to issue a separate check for each man on the crew.

The owner of Bentley Construction and Maintenance sustained an eye injury and filed for workers’ comp, which was denied by the carrier. Applying the eight-factor test set forth in the North Carolina Supreme Court’s 1944 ruling in Hayes v. Elon College, an appellate court determined he was an independent contractor and not entitled to benefits.

Worker who jumped off roof entitled to benefits – Pennsylvania

In Wilgro Services, Inc. v. Workers’ Compensation Appeal Board (Mentusky), a HVAC mechanic, working on the roof of a building, had used a ladder roofers had been using to get up and down from the roof. One day he was the last one on the job, and there was no ladder available. He chose to jump from the lowest part of the roof, perhaps 16 to 20 feet from the ground and ended up with multiple fractures. The carrier denied the claim but the Workers’ Compensation Judge (WCJ) granted benefits, noting although the jump was ill advised, the worker did not intentionally injure himself.

On appeal, the case made its way to the Commonwealth Court, which agreed that the worker was in the scope and course of his employment and entitled to benefits.


Employer’s denial of benefits does not preclude right to subrogation – Pennsylvania

In Kalmanowicz v. WCAB, a divided Commonwealth Court ruled that an employer’s denial of a workers’ compensation claim does not forfeit its ability to partake in any recovery from a subrogated claim. In Pennsylvania, an employer’s subrogation right is often described in terms of being “absolute” and there are only “very narrow circumstances” in which that right can be waived.

In this case, the employer was contesting a claim for PTSD that arose from a fatal automobile accident where an oncoming vehicle swerved into the employee’s lane with the driver pressing his head against the windshield and staring at the employee. The employee argued that employer could not recover a subrogation lien because it had not accepted liability for the PTSD. Since the employer had not acted in bad faith nor failed to exercise due diligence in enforcing its subrogation rights, the court said the employer had not waived its right to subrogation.

Pension offset for workers’ comp based on maximum amount, not what was actually received – Pennsylvania

In Harrison v. WCAB, a divided Commonwealth Court ruled that an employer was entitled to an offset against an injured worker’s pension benefits based on the maximum monthly amount of pension benefits he could receive, even though he was receiving a lower monthly rate that provides a survivor benefit for his spouse. The court argued even though he received a reduced payment, his employer needed to provide funding to the pension plan to pay the survivor benefits to his wife and, therefore, both pensions would be “actuarially equivalent.”

Worker cannot sue co-worker for injuries in auto accident – Tennessee

In Williams v. Buraczynski, the Court of Appeals of Tennessee at Knoxville found that an injured worker could not sue his co-worker who was driving at the time of the accident for negligence. It noted the exclusive remedy was workers’ compensation and that case law provided the rights under the system. One of those rights is to “not be subject to a tort suit by another employee for actions taken in furtherance of the employer’s business.”

Claim for surgery treating pre-existing condition, not injury, disallowed – Wisconsin

In Flug v. Labor and Industry Review Commission, a divided Supreme Court ruled that a worker was not entitled to benefits for her surgery to treat her degenerative disc disease, even though she had a good-faith belief that the surgery was reasonable and necessary treatment for her work-related back and shoulder injuries.

A Wal-Mart supervisor suffered an injury to her shoulder and received conflicting opinions from three physicians regarding treatment. Following the recommendations of a neurosurgeon, she underwent surgery for an anterior cervical discectomy. However, the carrier only provided coverage for a muscle sprain based on the opinion of the doctor hired by Wal-Mart to perform an independent medical evaluation who concluded she suffered a cervical and shoulder strain that was resolved long before the surgery and that she had pre-existing degenerative disc disease.

While the Court of Appeals found that she was entitled to disability benefits for her surgery as long as she had a good-faith belief that it was necessary treatment for her industrial injury, the majority of the Supreme Court held “if the disability-causing treatment was directed at treating something other than the employee’s compensable injury” it is not compensable.

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

OSHA watch

Temporary enforcement policy on monorail hoists in construction

Employers whose monorail hoists fail to comply with requirements in the Crane and Derricks in Construction Standard will not be issued citations as long as they adhere to other regulations, according to a recent memorandum.

The temporary enforcement policy notes stakeholders identified gaps in the standard regarding monorail hoists, which typically are mounted on scaffolding systems, trucks or trailers. They are used to lift items such as mechanical equipment, precast concrete components and oil/propane storage tanks. Employers still need to comply with the overhead hoist and general training standards. General industry requirements for monorail hoists remain in effect.

New guide will help small businesses comply with silica rule for general industry and maritime

A Small Entity Compliance Guide for General Industry and Maritime to help small business employers comply with the Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica describes the steps that employers are required to take to protect employees in general industry and maritime from the hazards associated with silica exposure.

Window cleaning association creates safety guide for workers

Through its alliance with OSHA, the International Window Cleaning Association has developed a guide for protecting the safety and health of window cleaners. The mobile-friendly guide offers best practices on identifying and avoiding fall, chemical, electrical and other hazards workers face on the job.

Fact sheet explains requirements to protect residential construction workers from confined space hazards

A new fact sheet explains how the Confined Spaces in Construction standard affects common spaces in residential construction, such as attics, basements, and crawl spaces. The fact sheet, developed after consultation with the National Association of Home Builders, and a detailed Frequently Asked Questions document, clarify some of the standard’s provisions and their application to residential construction work.

Construction organization publishes new heat hazard alert

A new heat hazard alert published by CPWR-The Center for Construction Research and Training, reviews heat hazards and the steps to prevent heat illness while working in hot weather. Extreme heat causes more deaths than any other weather-related hazard.

Publication on preventing injuries in the electric power industry now available

The electric power industry has released a case study to show the integral part safety and health programs play in keeping electrical workers safe on the job.

New webpage for HAZWOPER

Intended to help workers and employers involved with the Hazardous Waste Operations and Emergency Response Standard (1910.120) for construction and general industry, the webpage includes links to background information on HAZWOPER and corresponding standards, as well as resources for general businesses, worker preparedness, and training.

Enforcement notes

California

Chevron Corp. has settled workplace safety and health citations issued in relation to a 2012 refinery fire for more than $1 million. The negotiated settlement requires Chevron to institute measures, estimated over $20 million, to ensure process safety at the Richmond refinery, to develop and implement criteria and procedures to monitor equipment to alert operators when equipment should be replaced, and to provide specialized hands-on training on incident command situational awareness and hazard recognition for all Chevron Fire Department personnel.

Oakland-based Attic Pros Inc. was ordered to pay $2,109,480 in wages, liquidated damages and waiting time penalties for 119 workers who were misclassified as independent contractors, and $1,481,600 for civil penalties according to the state Labor Commissioner’s Office.

Florida

Ann Arbor-based Douglas N. Higgins Inc. and its related contracting company, Florida-based McKenna Contracting L.L.C. were issued 10 serious violations with total proposed penalties of $119,507 after three employees died from exposure to toxic gases in a manhole at a Florida worksite. Among others, the citations included failing to purge or ventilate a confined space before entry, exposing workers to an asphyxiation hazard and not providing necessary rescue and emergency equipment for employees overcome inside a permit-required confined space.

Georgia

An administrative law judge of the U.S. Occupational Safety and Health Review Commission upheld citations and a total of $6,013 in penalties assessed against Atlanta-based Empire Roofing Company of Georgia Inc. whose employees were not wearing fall protection. The company had appealed the citations and proposed fines, contending that the employees’ failure to tie off was the result of unpreventable employee misconduct and that all employees were appropriately trained. But the judge ruled that the employer did not meet the burden to use the defense, which requires “more rigorous” proof of employee misconduct since supervisors have a duty to protect their employees.

After several appeals, a safety citation against Smyrna-based Action Electric Co., for failure to affix a personal lockout or tagout device while servicing a client’s equipment that resulted in a fatality was upheld by a federal appeals court. The company contested the citation arguing that the lockout/tagout standard did not apply because the equipment that caused the fatality was not the equipment that its employees were servicing, and that its employees were only looking at the fans, not working on them, at the time of the incident. The Department of Labor responded that the cooling bed constituted one discrete mechanical system for the purposes of lockout/tagout rules, which would require employees to control the energy of the entire cooling bed before conducting work on it that could expose them to danger. The federal 11th Court of Appeals reinstated the citation noting employers are capable of determining the appropriate scope of their LOTO protocols and that it did not matter whether the employees were working on equipment or merely observing it.

Michigan

Following two reports of finger amputations on machines and an employee complaint alleging numerous safety hazards, the MIOSHA issued citations with penalties totaling $263,000 to AJM Packaging in Taylor.

Minnesota

Rahr Malting Co. in Shakopee faces $52,800 in penalties for safety violations identified after a worker was fatally injured in January. Inspectors issued four serious citations after determining that it failed to control potentially hazardous energy and provide point-of-operation machine guarding.

New Jersey

Delair-based Aluminum Shapes LLC, an aluminum manufacturing company with a long history of noncompliance has been cited for 51 safety and health violations and proposed penalties of $1,922,895. Willful violations included: provide appropriate personal protective equipment, conduct air monitoring prior to permit-required confined space entry, have an attendant during permit-required confined space entry, complete a required confined space entry permit to identify, evaluate and control hazards in the space, provide confined space training, utilize proper Lockout/Tagout (Control of Hazardous Energy) Procedures and training.

Ohio

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties for six repeat, 19 serious and five other-than-serious safety and health violations after investigators found workers at its Groveport plant exposed to machine hazards and silica. The company has been placed in the Severe Violator Enforcement Program.

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

The quandary of legal pot and workers’ compensation deepens

Now that 28 states have legalized the medical and/or recreational use of marijuana, employers are struggling with zero tolerance policies, pre-employment drug testing, employee drug testing, discrimination suits, and general uncertainty. Laws about marijuana vary from state to state, making questions about how it affects workers’ comp and other employer policies even more confusing. Further, as states tighten up laws on the use of opioids to manage pain, some argue that cannabis is a viable alternative, raising concerns that workers will be impaired when they return to work.

The changing landscapes are challenging for employers and will lead to more litigation, new laws and regulations. Here are six recent actions and trends that employers should know about:

  1. Federal budget protects medical marijuanaAlthough Attorney General Jeff Sessions has been an outspoken critic of medical marijuana, the $1 trillion spending bill approved in May, which will fund the U.S. government until the end of September, includes language that protects state medical marijuana programs from federal enforcement. It provides no funding for any prosecution of cases involving medical marijuana where it has been made legal. Recreational users are not protected under this provision.
  2. Opioid crisis drives loosening of use of medical marijuana in comp casesAlthough medical marijuana remains illegal under federal law, the landscape of marijuana use in workers’ comp is changing. Some advocate its use as a way to stem the epidemic of addiction and opioid abuse, but others argue there is little validated research to determine its effectiveness and possible side effects. Others see it as an effective way to reduce the ongoing costs of legacy claims, particularly those involving workers who will not return to work.In states such as New Mexico and Louisiana, judges have ordered insurers to reimburse injured workers for medical marijuana, when deemed medically necessary by a treating physician. New Mexico also required carriers to start reporting marijuana reimbursements beginning Jan. 1, 2016. For 2016, 15 payers reported reimbursements for medical marijuana totaling $46,826 for 19 claims. The average reimbursement amount per claim was $2,465. On average, each injured worker was reimbursed for 205 grams of marijuana, or about 22% of the maximum 920 grams allowed per year.In May, the Maine Supreme Court agreed to hear a case in which an administrative law judge had ordered reimbursement under workers’ compensation for an injured worker’s medical marijuana. While the Maine law made clear that medical marijuana was not a drug that could be paid for by a private health insurer, the statutory language does not apply to other insurers, including workers’ comp. Insurers and employers are awaiting the outcome of Bourgoin vs. Twin Rivers Paper Company.

    Even when the law permits insurers to reimburse injured workers for medical marijuana, the claims are complex. The doctors prescribing cannabis typically may not be the same physicians treating injured workers for the medical cause of their workers’ comp claim. It needs to be determined whether marijuana is medically appropriate, why they recommend it, and whether it is really for the work-comp injury or some other condition.

  3. Employers rethinking drug testing policiesA key challenge to employers is measuring impairment, when an employee uses marijuana. At issue is how long marijuana stays in a person’s system and the lack of a reliable test to determine what level of THC (the chemical ingredient that causes the “high”) leads to certain impairment.Positive marijuana tests continue to climb in both federally mandated, safety sensitive workplaces and the general workforce, according to Quest Diagnostics, Inc. Colorado and Washington, where recreational marijuana has been legal for several years, saw some of the biggest leaps for workers in safety-sensitive jobs. However, the dilemma for employers is that a positive test does not always equate with impairment.Although courts have supported employers in pre-employment drug testing cases, fewer Colorado employers are doing it. A tight labor market may be a reason, but some believe employers have become more accepting and looking for other ways to manage the issue.

    Some experts suggest that employers have a separate policy for marijuana testing. In developing any policy, it’s important to consider what type of work employees are doing. Employers can have separate drug testing policies for those in safety-sensitive positions, machine operators, and still another for office and administrative workers.

    Others suggest the use of impairment or psychomotor testing, rather than the traditional urine, saliva, or hair testing, when legally possible. With traditional testing, it’s difficult to determine whether the employee is high and impaired or is testing positive with lingering traces from weekend use. They argue that the point of drug testing is to determine if workers can do their job safely and not endanger others, and that impairment testing that measures reaction time, decision-making, and pattern recognition against an employee’s baseline is more effective.

    The state of Maine recently offered state employers “impairment detection training,” noting employers can continue drug screening of employees until the recreational marijuana law goes into effect in February 2018. However, thereafter, if not amended, testing for marijuana use will violate the state’s regulations protecting those who wish to use marijuana recreationally outside of work.

    However, many employers and federally mandated testing still rely on traditional testing, believing it is the best way to control risk. For example, the Department of Transportation (DOT) determined that the urine tests would not change because of the new state laws legalizing marijuana.

    For a workers’ comp claim to be denied, some states require employers to prove that a worker’s intoxication caused the injury, which can be difficult when the only evidence is a positive marijuana drug test. Employers are encouraged to better train supervisors and employees to recognize impairment and take steps to control and document it.

  4. Non-hiring or firing for positive marijuana testing can lead to discrimination suitsA “watershed” decision in Massachusetts sheds light on the issues employers face in employment practices and zero tolerance drug policies. In Cristina Barbuto vs. Advantage Sales and Marketing L.L.C., a worker was authorized by her physician to use marijuana to stimulate her appetite and help with symptoms of Crohn’s disease and informed the company that she would test positive on drug screenings. A supervisor told her the medicinal use of marijuana “should not be a problem,” which he later confirmed after consulting with others at the company, according to court documents.On her first day of work, she submitted a urine sample for a mandatory drug test and began work. Later in the day, she was terminated by an HR rep for testing positive for marijuana and was told the company followed federal, not state, law. She filed discrimination charges, alleging six claims, including handicap discrimination, invasion of privacy and denial of the right to use marijuana lawfully as a registered patient to treat a debilitating medical condition.A trial court judge dismissed all claims except the invasion of privacy claim, but a six-judge panel of the Massachusetts Supreme Court reversed the lower court judge’s dismissal of her claim for handicap discrimination and related claims, but affirmed the motion to dismiss on counts claiming an implied private cause of action and wrongful termination in violation of public policy. Notably, the supreme judicial court became the first appellate court in any jurisdiction to hold that medical marijuana users may assert state law handicap or disability discrimination claims-regardless of whether the state’s medical marijuana statute provides explicit employment protections. (Massachusetts’s medical marijuana statute does not provide such employment protections.)

    “The fact that the employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation,” the court ruled. “The only person at risk of federal criminal prosecution for her possession of medical marijuana is the employee. An employer would not be in joint possession of medical marijuana or aid and abet its possession simply by permitting an employee to continue his or her off-site use.” The case has been remanded to the Superior Court.

    Takeaways for employers:

    • Employers may find it harder to argue that an adverse employment action against a medical marijuana user is justifiable solely because marijuana is categorized as an illegal controlled substance under federal law
    • Courts may increasingly look upon “the use and possession of medically prescribed marijuana by a qualifying patient as lawful” as the use and possession of any other prescribed medication
    • State law handicap or disability discrimination claims may apply to medical marijuana users
    • Employers should engage in the “interactive process” with medical marijuana users to determine if they can perform essential job functions with a reasonable accommodation
  5. Comp coverage for medical marijuana dispensaries uncertainThe conflict between federal and state laws on marijuana means that individual insurers are using their business and legal judgment in deciding whether to provide services to the marijuana industry. Hawaii’s largest workers’ compensation insurer, Hawaii Employers’ Mutual Insurance Co. (HEMIC), recently announced that it is canceling insurance policies for seven medical marijuana dispensaries that were slated to open this summer. In its statement, it noted that legal opinions clearly acknowledge that HEMIC and its board of directors have potential exposure for criminal liability based on federal law applicable to marijuana businesses.While many major carriers have provided coverage in other states, there is more uncertainty under the new presidential administration. On the other hand, it is a $6.5 billion dollar business and legitimate employers can be an attractive market for insurers.
  6. New information is emergingThe federal government’s stance that marijuana is an illegal substance has stalled research on its effectiveness, side effects, dosage, and so on. The first large study to directly compare medical marijuana to an opioid drug is beginning at the University of Colorado, Denver. The grant for this study is part of $9 million awarded by the state for trial purposes, funded in part by tax money from marijuana sales.A recent study by the Highway Loss Data Institute (HLDI) showed a correlation between marijuana use and traffic accidents. Claims frequency in Colorado, Washington, and Oregon, the states to first legalize recreational marijuana, was 3% higher than the controlled states that had not legalized marijuana. The HLDI has also begun a large-scale study in Oregon to assess how legalized marijuana use may be changing the risk of crashes with injuries.

There’s no easy answer for employers trying to respond to the increase in marijuana use and be compliant with the law. While the use of medical marijuana is still in its infancy, it’s important to recognize that if a doctor concludes medical marijuana is the most effective treatment for an employee’s debilitating condition, an interactive process, including an exception to an employer’s drug policy, may be warranted. Staying informed, updating and monitoring drug policies, educating employees on how it can impair judgment and motor skills, developing policies based on the employee base, and consistent hiring and disciplinary treatment can help ensure that they have a safe and productive workforce.

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

OSHA update: Electronic record keeping, regulatory agenda, combustible dust, noise in construction

OSHA’s Injury Tracking Application is now available allowing employers to electronically enter their required 2016 injury and illness data from Form 300A. The Improve Track of Workplace Injuries and Illnesses final rule went into effect Jan. 1 with an initial compliance deadline of July 1. But OSHA has proposed delaying that deadline until Dec. 1, in an effort to allow employers to become familiar with the new web-based reporting platform, as well as provide time for the Trump administration to review the requirements before enacting them.

The requirements are to be phased in over two years. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by December 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by December 1, 2017, and their 2017 Form 300A by July 1, 2018.

The agency’s data submission process has four steps including:

  • creating an establishment
  • adding 300A summary data
  • submitting data to OSHA and
  • reviewing the confirmation email

There are three options for data submission. The first enables users to manually enter data. The second allows employers to upload a CSV file to process single or multiple establishments at the same time. Lastly, an application programming interface will allow users to sync automated recordkeeping systems directly to the platform.

In addition, OSHA says it plans to issue a separate proposed rule to reconsider, revise, or remove other provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule. The Agency will seek comment on those provisions in the separate proposal.

What should employers do now?

The future of the rule is uncertain and OSHA has proposed delaying the deadline for compliance until Dec. 1. Presently, the decision-making positions within the agency are thinly staffed. The assistant secretary (the head honcho) position is vacant. The chief of staff and senior advisor positions are vacant. One of two deputy assistant secretaries is vacant. While most pundits think the Trump administration will remove or significantly revise the provisions to publish the data online, it’s unknown what will be done with these historically private records once they are submitted electronically. For that reason a wait and see approach might be best, particularly for those with questionable performance.

 

Notable drops on regulatory agenda: combustible dust and noise in construction

The administration recently published its Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year. As expected the potential regulatory actions have been cut more than in half. The agenda lists 14 standards in either the pre-rule, proposed rule or final rule stages compared to the 30 listed on the Fall 2016 agenda by the Obama administration.

The combustible dust standard intended to prevent combustible dust explosions is the most notable drop as it was added to the agenda following a catastrophic sugar dust explosion in Georgia in 2008. Also, the noise in construction initiative has been dropped. OSHA has a hearing conservation standard for general industry workers, but nothing equivalent for construction workers. These initiatives have been classified as “completed actions” and for each initiative OSHA states, “OSHA is withdrawing this entry from the agenda at this time due to resource constraints and other priorities.”

Other pre-rule and proposed rule items moved off the main regulatory agenda and placed on a long-term actions list include prevention of workplace violence in health care and social assistance, emergency response and preparedness, infectious disease rule, and tree care standards.

Long-term actions are items under development, but for which the agency does not expect to have a regulatory action within the 12 months after publication of the current edition of the Unified Agenda.

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

Things you should know

Employer control over medical providers can lower costs for spinal injuries

A study by the Workers Compensation Research Institute (WCRI) found the greatest disparity in medical and indemnity costs between states that allow injured workers to choose their own providers and those that give employers more control is for spinal injuries. Researchers noted that there is more subjectivity in the nature of care for back and neck injuries, whether employees can go back to work, and the level of pain.
ISEA updates fall protection guide

In response to new regulations and standards, the International Safety Equipment Association (ISEA) has updated its Personal Fall Protection Equipment Use and Selection Guide. The 30-page document explains how to set up a fall protection program, details the major parts of fall protection systems, and advises on the selection of equipment based on industry. It also includes relevant OSHA regulations and U.S. and Canadian consensus standards.
New chronic pain guideline emphasizes physical activity

An “overwhelming theme” in treating patients for chronic pain is to keep them as physically active as possible, according to an American College of Occupational and Environmental Medicine treatment guideline recently released, which has not been released to the public. The therapy needs to move beyond simply stretching to strengthening, aerobic conditioning, and functional improvement and one key is to not prescribe activity “as tolerated” or “as needed.”
Study of severe injury data finds poultry and meat workers at high risk

Every day, 27 workers suffer on-the-job amputations or injuries that require hospitalization, according to a recent report from the National Employment Law Project. According to the data, employers reported 17,533 severe injuries between Jan. 2015 and Sept 2016.

Out of more than 14,000 companies reporting to the government, Tyson Foods ranked fourth, and JBS/Pilgrim’s Pride ranked sixth, in terms of the number of severe injury reports filed. Further, the poultry industry as a whole has the 12th highest number of severe injuries of all industries reporting-higher than the sawmill industry, auto, steel, and other high-hazard industries.
Large variation in worker attorney involvement by state: study

WCRI released a new FlashReport to help inform policymakers and stakeholders about worker attorney involvement in their state. According to the study, the percentage of claims with worker attorneys ranged from 13-14 percent in Wisconsin and Texas to 49-52 percent in New Jersey and Illinois. States included in this study are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.
Mine safety rule implementation delayed until Oct. 2

The U.S. Mine Safety and Health Administration (MSHA) has extended the effective date for its rule on workplace safety examinations for metal and nonmetal mines to Oct. 2. The rule addresses the timing of workplace safety examinations and strengthens notification requirements.
MSHA launches lone miner safety initiative

MSHA announced it will begin focusing inspections and mine visits on lone miner situations after five of eight miner fatalities this year have involved miners working alone.
State updates

California

  • Insurance Commissioner Dave Jones has issued a revised advisory pure premium rate, reducing rates by 16.5% to $2.02 per $100 of payroll effective July 1.
  • Occupational Safety and Health Standards Board approved a new regulation that serves to strengthen process safety management around the state’s oil refineries.
  • The start date for the planned drug formulary will be delayed by six months to January 1, 2018 to revise parts of the plan and receive public comments.

Florida

  • 14.5% increase in comp premiums upheld by appeals court.

Illinois

  • The average indemnity benefit per claim in Illinois was $21,275 in 2013, while the median state benefit per claim was $18,269 according to a WCRI study.
  • The Senate passed two pieces of workers compensation reform legislation that would reduce the cost of workers compensation insurance for employers and introduce market competition. The bills will be sent to the governor for signature.

Mississippi

  • The Workers’ Compensation Commission has adopted an amendment to its 2017 fee schedule, adding opioid guidelines.

 

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

Legal Corner

ADA
Part-time schedule not required when the essential duties of the job cannot be performed

In Green v. BakeMark USA LLC, 6th Cir., the manager had been granted several leaves for cancer surgery and subsequent complications and returned with hour restrictions for a limited time. Shortly after returning to full duty and working a 24-hr shift, he collapsed and his doctor again issued work restrictions. At the employee’s request, the company provided information on the hours he was expected to work to the treating physician. It also attempted to reach the employee by phone and email, but received no response, which led to mediation.

At mediation, the employee, in effect, requested an indefinite leave of absence. The company terminated the employee who filed several claims under the ADA. A federal district court granted summary judgment in favor of BakeMark and on appeal, the 6th U.S. Circuit Court of Appeals affirmed dismissal.

Based on witness testimony and the job description for the position, the appeals court noted anything less than full-time hours would fundamentally alter the position, which is not required by the ADA. While part-time or flextime schedules can be a reasonable accommodation, they are not required when the essential duties of the job cannot be performed within the restricted hours.

 

Workers’ Compensation
Supreme Court tightens rules on where injury lawsuits can be filed – United States

The U.S. Supreme Court tightened rules on where injury lawsuits may be filed, handing a victory to corporations in a case involving Texas-based BNSF Railway Co. In an 8-1 decision, the justices threw out a lower court decision in Montana allowing out-of-state residents to sue there over injuries that occurred anywhere in BNSF’s nationwide network. State courts cannot hear claims against companies when they are not based in the state or the alleged injuries did not occur there, the justices ruled. In effect this significantly limits the ability to bring claims in friendly courts.
Work Comp policy can be rescinded for misrepresentation – California

A Workers’ Compensation Appeals Court determined that an insurer has the right to retroactively rescind a workers’ compensation policy, even if a worker has already been injured. In this case, the employer’s application for coverage implied that its employees did not travel out of state, but an employee was injured out of state.

In Southern Insurance Co. vs. Workers’ Compensation Appeals Board (WCAB), EJ Distribution Corp. et al., EJ Distribution Corp.’s application indicated covered employees would not travel out of California or outside of a 200-miled radius. After the arbitrator found the policy could not be rescinded and the WCAB adopted the arbitrator’s report, Southern petitioned the court for a writ of review, which was granted.

“Contrary to the arbitrator’s ruling, a workers’ compensation insurance policy may be rescinded,” the court said in its ruling. “A recession is enforced by a civil action for relief based on recession or by asserting recession as a defense. Because the arbitrator and the appeals board did not address and determine whether rescission was a meritorious defense to the employee’s claim, we annul the appeals board’s decision and remand the case with directions to hear and determine whether the insurer was entitled to rescind, and did rescind, the policy.”
Court of Appeals allows apportionment to genetics – California

In City of Jackson v W.C.A.B., a police officer injured his neck and was diagnosed with cervical degenerative disc disease and cervical radiculopathy. A physician concluded that his injury was cumulative and caused by a combination of work and personal activities as well as a personal history of “heritability and genetics”, among other things.

After the neck surgery, the doctor changed the apportionment to 49 percent; saying that there was new evidence that showed genetics played a more significant role in cervical spine disability than previously thought, citing several studies. The WCAB did not agree, but the Court of Appeals noted employers are able to base apportionment on other factors such as a preexisting disability or the natural progression of a non-industrial condition. The Court determined that there was substantial medical evidence to justify the apportionment, since new medical studies showed that heritability had a role in about 75 percent of degenerative disc disease cases.
Injured employee gets lawn care but not home renovations for treatment – Florida

An employee was injured on the job, had a compensable spinal fusion surgery, after which she developed a dropped foot, and experienced balance issues and falls. She also suffered from depression. A Judge of Compensation Claims awarded her lawn care, home renovations, attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes based on medical necessity.

The First District Court of Appeals upheld the award for lawn care because there was evidence that it would improve her depression and anxiety, both of which were compensable. The home care, podiatrist, AFO brace and specialized shoes were also upheld because the employer failed to contest their medical necessity in a timely manner. The home renovations proposed by a registered nurse, however, were denied. The court reasoned that while the orthopedic surgeon indicated that he agreed with some of the suggestions in a home assessment report completed by a registered nurse, the physician never identified which ones should be provided and the registered nurse was not qualified to establish the medical necessity.
Worker can request change in doctor even after discharge from medical treatment – Florida

In Dominguez v. Compass Group, the1st District Court of Appeals ruled that a worker was entitled to exercise her statutory right to a one-time change in physicians, even though her doctor had discharged her from care.
School employee due benefits for fall when senior prank day necessitates different parking location – Illinois

In Field v. Pinckneyville Community H.S. Dist. 101, a teacher was walking from her car to the building where she worked when she fell and fractured her lower leg. She was walking a much further distance than usual because vehicles blocked the entrances to the school parking lot as part of a senior prank day. The Workers’ Compensation Commission awarded the teacher permanent partial disability benefits based on 35 percent loss of use of the left leg and medical expenses of $80,791 for injuries. It noted the prank day is implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces is a known activity, therefore, the teacher was within the scope of her employment.
Chicago Bears pay over $12.5 million to settle comp claims – Illinois

According to an article in the Chicago Sun-Times, over the past 20 years the football team has spent nearly $12.5 million to settle worker compensation claims filed by 141 players. And the team it still grappling with 144 additional claims from 55 other players. The Chicago sports teams have been arguing that the state’s laws regarding wage differential payments create a financial burden.
Highest court restricts admissibility about immigration status – Indiana

The Supreme Court ruled that an injured worker could pursue a damage claim for his lost future earnings in the U.S. job market, even though his immigration status did “not allow him to be legally employed.” It also restricted the admissibility of evidence about his immigration status to the jury unless the preponderance of the evidence establishes that he is likely to be deported and that his future lost earnings would therefore be limited to what he could earn in his native Mexico. Escamilla v. Shiel Sexton Co.
EMT suspended for criminal charges due benefits – Massachusetts

In Brian Benoit v. City of Boston, an EMT suffered an ankle injury and one year later was indicted on charges relating to misuse of controlled substances intended for his emergency patients. The city refused to pay benefits citing a 1972 state law banning public-sector workers facing criminal charges from receiving compensation from a government agency. However, the court ruled unanimously that the benefits are not salary, but an insurance agreement between the injured worker and the insurer and benefits were due.

Request for work with a different employer in rehabilitation plan nixes termination of TTD benefits – Minnesota

In Gilbertson v. Williams Dingmann, LLC, an employee who had given her notice, was injured prior to her departure date. The employee’s rehabilitation plan stated that her vocational goal was to return to work, but with a different employer. Although her employer offered her the same position at the same pre-injury wage, with reasonable accommodations for her physical restrictions, it was not completely consistent with the rehab plan as required by law. The employer’s offer could not, under any circumstances, be consistent with that plan.
Teacher cannot sue school district for injuries incurred during student fight – Minnesota

There are three exceptions to Minnesota’s workers’ comp exclusive remedy provision, including an assault exception, an intentional act exception and a co-employee liability exception. In John Ekblad vs. Independent School District, a high school teacher also served as lunchroom supervisor for additional compensation. While his duties included intervening to break up fights if he could do so safely, he was not required to do so. He received workers’ comp benefits when he intervened in a fight and was injured.

He sued the school district, alleging negligence and negligent supervision. The assault exception covers injuries inflicted for personal reasons and he argued the students made references to his race, but the court found that racial animosity is insufficient to establish a personal connection. The court also ruled the intentional act exception did not apply because even if the district’s policies were substandard or ineffective, that did not establish a conscious and deliberate intent to inflict injury. Further, the co-employee liability exception did not apply because the duty to provide a safe workplace is a non-delegable duty held by the employer as part of workers’ comp law.
Employee’s death does not negate settlement agreement not yet approved by Commission – Mississippi

In Taylor v. Reliance Well Service, the Court of Appeals ruled that an employer must honor a $71,659.43 settlement for a comp case even though the worker died before the Workers’ Compensation Commission approved of the deal. The agreement was submitted to the commission for review on May 13, 2016, the employee was killed on May 16, and the Commission approved the settlement on May 18, assuming the employee was still alive. The company filed a motion to have the approval order vacated, which was initially granted.

Upon appeal, the court reversed noting Workers’ Compensation Law specifically provides that settlement agreements “shall not be made except when determined to be in the best interest of the injured worker” and therefore, the sole statutory basis for disapproval of a settlement is a finding that the settlement would not be in the best interest of the worker. The employee’s death wouldn’t affect the commission’s determination of this issue.
Eastern District refuses to approve post-award settlement, in direct conflict with the Western District – Missouri

In the Western District, cases have determined that the Labor and Industrial Relations Commission must sign off on a joint proposal to commute an award so long as it was not made as a result of undue influence or fraud, the employee understood his rights and benefits, and he voluntarily agreed to accept the terms of the agreement. In Andrew Dickemann v Costco Wholesale Corporation, the Eastern District says these criteria, derived from Missouri Revised Statutes Section 287.390.1, apply only when there is an unresolved claim for benefits.

If the worker has established his entitlement to an award, the Eastern District said the applicable Section is 287.530, which says that commutations are to be granted only in “unusual circumstances,” and it requires that the value of the commutation be equal to the present value of the future installments due to the employee. In this case, there was no evidence of “unusual circumstances” and the terms of the agreement did not provide a payment equal to the present value of the future benefits, therefore, the Labor and Industrial Relations Commission properly refused to authorize the deal. The Eastern District panel said it believed the case setting precedent in the Western District had been wrongly decided.

Liability for asbestos-related condition can not be apportioned – New York

In Matter of Manocchio v ABB Combustion Eng’g, the Workers’ Compensation Board appropriately refused to apportion liability for an employee’s asbestos-related disease despite some evidence that he had been exposed to asbestos at multiple employers over a long period of time. While a medical expert indicated that apportionment was appropriate in terms of exposure, the expert admitted that determining the exposure to asbestos at each employer was impossible. Therefore, the appellate court concluded there was no objective way to prove that the employee contracted pleural plaque while working for another employer, and could not be apportioned.
Employer stops negligence suit on labor law technicality – New York

In Robinson v. National Grid Energy Mgt. LLC, an electrical foreman’s negligence suit was thrown out after his employer argued that Labor Law § 240(1) did not require it to protect workers from electrical shock. The employee was installing wires for a company hired by T-Mobile, when he fell 12-15 feet to the ground from a faulty aerial bucket. Noting that the bucket was not equipped with the proper electrical protection and that the lift function on the truck was malfunctioning, he decided to climb down, but his foot became stuck in the part of the bucket typically covered by the electrical protection, and he slipped and fell.

When he sued, T-Mobile petitioned to dismiss the complaint, arguing the bucket was faulty because it did not provide adequate protection from electrical shock, not because it provided inadequate fall protection and that the Labor Law did not guarantee a protection from electrical shock. While a lower court dismissed the complaint on the grounds that the decision to exit the bucket had caused his fall, the Supreme Court of the State of New York’s 2nd Judicial Department Appellate Division disagreed, but dismissed the case based on T-Mobile’s reasoning regarding the Labor Law.
Protz decision does not automatically nullify IRE rating – Pennsylvania

In William Gillespie vs. Workers’ Compensation Appeal Board (WCAB) (Aker Philadelphia Shipyard), the Commonwealth Court affirmed the decision of the WCAB, reversing the decision of the Workers’ Compensation Judge (WCJ), who upheld the employee’s constitutional challenge to his impairment rating evaluation (IRE). The Commonwealth Court ruled that its 2015 decision in Protz v. WCAB (Derry Area School District) does not automatically allow injured workers who had their disability status converted through the impairment rating evaluation process to undo this change.

While the court’s decision in Protz declared the IRE rating standard unconstitutional, the court said workers who have already gone through the IRE process have 500 weeks to appeal the conversion of their disability status, and they need evidence of a full-body impairment above 50% to support their claim, which the employee did not provide. The court said it had already rejected the idea that the Protz decision invalidated all IREs performed using the fifth edition of the guides late last year, in the case Riley v. WCAB.
Lay testimony sufficient to prove exposure – Pennsylvania

In Kimberly Clark Corporation v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician who was diagnosed with metastatic bladder cancer in the summer of 2005, and died a year later. His widow filed a Fatal Claim Petition and relied upon the testimony of two co-workers who detailed the various chemicals and substances known to cause cancer that her husband worked with, as well as an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens. This testimony was considered more credible than that presented by the “environmental manager” for the Employer’s plant and the insurance company’s expert physician. The Fatal Claim Petition was granted by the WCJ and upon appeal, affirmed by the Commonwealth Court.

One issue addressed by the Court was whether the death took place within 300 weeks of the “injury.” When viewed as a repetitive or cumulative trauma case, the date of the “injury” is the date of the last exposure to the harmful source; thus, the death did take place within that period.
Co-employee immunity protects unpaid volunteer – Wisconsin

In Fitzgerald v. Capezza, an employee of a catering company suffered injuries in a car accident while en route to a work site as a passenger in a truck driven by a volunteer for the catering company. The employee filed a workers’ compensation claim, which she eventually settled. About a year later, she filed a personal injury action against the volunteer and her automobile liability insurance carrier. The case went through several appeals, but all concurred that the unpaid volunteer for the catering company was still a co-employee. As long as she received something of value in exchange for her work, and she received food, lodging and free admission into events, the court said she would be a “paid” worker for purposes of Wisconsin comp law.

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

OSHA watch

Legislative updates (see first article for details)

  • Electronic record-keeping rule delayed, but anti-retaliation provisions remain
  • Walkaround rule rescinded
  • Enforcement of silica standard for construction delayed until Sept. 23

No major budget changes for FY 2018, but shifting priorities

The proposed FY 2018 budget includes $543 million with $130 million for “federal and state compliance assistance activities to enhance employer outreach and training.” The budget for fiscal year 2017, which ends Sept. 30, was $552.8 million. While adding money to compliance assistance, the proposed budget slashes funding for the standards and statistics programs. Enforcement remains intact and there are no new riders that would prohibit the agency from enforcing any standards or other parts of the law.

Meanwhile, the Mine Safety and Health Administration would see relatively small changes in funding for fiscal year 2018, but NIOSH might experience a sizable reduction in its budget, and the Chemical Safety Board still is scheduled for elimination.

New videos and infographics provide facts on falls

Falls are the leading cause of death for construction workers, accounting for 367 of the 985 construction fatalities recorded in 2015. Two videos have been posted on the Stand-Down homepage and a series of infographics can be downloaded.

Enforcement notes

Illinois

Demolition company faces $152,000 in fines following death of worker

Omega Demolition Corp. was working on the demolition of an I-90 bridge when a falling beam injured several workers and killed one. An investigation found that the company overstressed the beam, resulting in the beam’s failure and $152,000 in fines was levied. A commission has been set up to review the findings and determine whether the fines and citations will stand and what additional measures the Illinois Tollway will take.

Massachusetts, Maine

Railroad company violated whistleblower’s right and ordered to pay $260,000

A federal appeals court has affirmed that Pan Am Railways, Inc. must pay $260,000 in punitive and compensatory damages and take corrective action on behalf of an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint. The court found the North Billerica-based commercial railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

Michigan

Landscaping company hit with $222,000 in safety fines, stop-work order

Failure to abate safety hazards, including not using traffic control devices when employees were working near the road, not training workers on tree-trimming operations and safeguards, and not using a chipping machine in a safe manner led to a cease-operation order against Sunset Tree Service & Landscaping LLC. The company has a history of violations.

Auto insulation manufacturer faces fines of $569,463

An Ohio-based employee of Michigan, Farmington Hills-based Autoneum North America suffered an amputation of his right hand, wrist and part of his forearm when his arm got caught in a shredding machine at the auto insulation manufacturer plant in Oregon, Ohio. The company faces $569,463 in proposed penalties for failure to equip the machine with adequate safety guards.

Ohio

Automotive steel manufacturer faces $279,578 in penalties

Canton-based Republic Steel, an automotive steel manufacturer, is facing $279,578 in proposed penalties after investigators found workers at its plant exposed to machine hazards and lead.

South Dakota

Sioux Falls-based Hultgren Construction L.L.C. faces two willful citations and a proposed penalty of $101,400 for failing to properly train and instruct employees, for exposing employees to struck-by and crushing hazards, and not performing an engineering survey prior to beginning demolition. The company was renovating a historic building in downtown Sioux Falls when the building collapsed, killing one of its employees.

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

Highlights of the 2017 NCCI Symposium

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation, and prepares insurance rate and loss cost recommendations, holds an Issues Symposium. The theme for 2017 was “Adapting”. Bill Donnell, president and CEO, noted the industry must remain open to new ideas and processes to stay relevant in an atmosphere of rapid change, largely driven by technology.

Highlights and findings include:

  • NCCI’s chief actuary, Kathy Antonello, noted in a presentation of NCCI’s State of the Line report that the workers’ compensation combined ratio for private workers compensation insurers during calendar year 2016 was 94%, driven by a decline in frequency paired with increases in indemnity and medical severity. On an accident year basis, the industry-reported 2016 workers compensation combined ratio was 98%.
  • Average lost-time claim frequency across NCCI states declined by 4% in 2016, on a preliminary basis.
  • In NCCI states, the preliminary Accident Year 2016 average indemnity claim severity increased by 3% relative to the corresponding 2015 value. For medical, the preliminary average lost-time claim severity increased by 5% relative to that observed in 2015.
  • Overall average cost of Lost Time claims in NCCI states now is $53,000.
  • Post recession, workers’ comp medical spend on indemnity claims have increased LESS than Personal Health Care spending per capita.
  • Only about 9% of managers can be replaced by automation, but 78% of workers in predictable physical work.
  • Generic drugs now represent the majority of costs for scripts in workers’ comp. Shift largely because of patent expirations on popular meds.
  • Payroll growth largest driver of increase in direct written premium.

Understanding the drivers of medical costs

NCCI’s project leader and senior actuary, Barry Lipton, presented a detailed analysis of the trends and drivers of medical costs. Average medical costs per claim have been increasing each year at low single-digit rates since 2009, and decreased in 2015. This mild growth in medical severity follows more than a decade of year-over-year increases that ranged from 5% to more than 13%.

Noting that it’s been quite a turnaround for comp, Lipton ruled out fee schedules and the ACA as drivers of the modest increase in medical severity. He concluded increased use of networks is a key driver in moderating medical costs.Average costs are a product of the cost of medical services and how often they are used. It appears that “networks not only deliver a price saving, but a utilization saving as well.” Average payments to network physicians are lower than average payments to non-network physicians and network doctors provide fewer treatments and services. NCCI is doing further research to quantify the savings.

While this is an encouraging trend, medical costs remain high. The average medical cost per lost-time claim is hovering around $30,000. One way to measure physician costs across the states is to compare work comp payments to the Medicare reimbursement rate. Prices paid relative to Medicare vary widely, from about 100% (Florida – 101%) to over 250%. Countrywide the average is 150%.

In 2015, physician costs were 38% of total medical costs, combined inpatient and outpatient hospital costs were approximately 31%, and prescription drug costs were about 11%. Of particular note is the rising cost of hospital inpatient care. In 2012, Hospital Inpatient Paid per Stay amounted to $19,514, in 2013, it rose to $22,944 (18% increase), in 2014, it was $24,558, or a 7% increase, and in 2015, it was $25,320, a 3% increase over the previous year.

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