OSHA watch

Interim enforcement guidance on silica standard for construction

The interim enforcement guidance for the Respirable Crystalline Silica in Construction Standard (1926.1153), which is now enforced in full, was issued Oct. 19 in a memorandum to regional administrators. The guidance is intended to help gauge whether employers meet various requirements, including those for inspections and avoiding citations, but does not provide guidance on all of the standard’s provisions. A final compliance directive is in the review process.

Information on silica hazards and related standards are now in one location on the website.


New fact sheets: Zika virus and evaluation of Shipyard Competent Person programs

The fact sheet on the Zika virus details how laboratory exposures occur, often through bodily fluids, and how to prevent exposures.

The Shipyard Competent Person programs fact sheet offers guidance on determining the necessary qualifications of experts who must be employed to determine whether a confined space is safe for workers and prescribe protective measures.


Pennsylvania construction firms join Strategic Partnership program

Shoemaker-Skanska Construction and the Philadelphia Regional Building Trades Council entered into a strategic partnership to protect approximately 300 workers during renovation and construction of a shopping mall complex in Philadelphia. P.J. Dick Incorporated entered into a strategic partnership to protect approximately 200 workers during the construction of an insurance office building in Erie.


Enforcement notes

California

  • HBuilt Inc. in Oakland received two serious citations and $80,000 in penalties for failing to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

Georgia

  • Structural Subcontractors Service LLC, a Birmingham-based structural framing company working on a job site in Georgia, faces penalties of $102,669 for exposing workers to fall hazards. Inspectors found workers wearing fall protection harnesses, but were not tied off to prevent a fall. The inspection was initiated as part of a regional emphasis program.

Massachusetts

  • Citations and proposed penalties against Dudley-based Shield Packaging Co. Inc. and two staffing agencies following a May 2016 incident in which an employee was injected with a flammable propellant gas have been settled. The packaging company will pay $150,000, about 50% of the original levy, and the two staffing agencies, Leominster-based ASI Staffing Group Corp. and Worcester-based Southern Mass Staffing, will pay $12,471 and $12,222 respectively. The company also agreed to document that all hazards are corrected, retain a professional engineer to approve the design and installation of a safety interlock on the machine that injured the worker, retain a qualified safety consultant to perform a comprehensive inspection of the plant, and develop a workplace safety and health program, while the staffing agencies also agreed to implement specific comprehensive safety and health measures.

Michigan

  • Ten citations and $102,600 in penalties were issued to SET Enterprises Inc. in New Boston for exposing workers to amputation hazards. Inspectors determined that the company failed to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

New York

  • Acme Parts Inc. has agreed to pay $40,000 in penalties after high lead levels were found in the manufacturing facility as well as hire a qualified lead hazards and abatement consultant to evaluate the facility and to recommend improved practices.
  • An administrative law judge affirmed citations issued against Webster-based LM Sanderson Construction Inc. whose employees were photographed working on a site without fall protection and assessed total penalties of $5,600. The employer failed to meet its burden in contending the violation was the result of unpreventable employee misconduct or that literal compliance with the standard’s requirement was infeasible under the circumstances.

Pennsylvania

  • Pittsburgh contractor, Ski Masonry LLC, is facing $201,354 in proposed penalties for exposing workers to fall and electrical hazards after an employee was fatally electrocuted.
  • In response to a complaint, the owner of a New Jersey construction company has been cited for exposing workers to alleged hazards at a Philadelphia job site, including allowing employees to work on a scaffold that was too close to power lines, failure to train on scaffold hazards, not providing hard hats and failing to develop and implement an accident-prevention program. The owner, Vyacheslav Leshko, faces $191,215 in proposed penalties.

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

Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

A report by the Northeast Business Group on Health (NEBGH) urges employers to look at their own experiences with claims, disability, workers’ compensation and health risk assessment data to best prioritize program selection and implementation to better manage MSDs. It addresses several strategies to mitigate cost and health issues and suggests using onsite ergonomics training, online courses on the subject and workplace redesigns. It also suggests new approaches to treatment, such as online pain education, direct access to physical therapy by bypassing physician referrals, and directing employees away from “unnecessary diagnostic imaging and expensive visits to specialists.” Finally, the report examined ways to ensure that if surgery is needed, that the care is performed in an efficient and cost-effective way.

Obesity and worker productivity by occupational class

The Journal of Occupational and Environmental Medicine has published a new study, “Impact of Obesity on Work Productivity in Different US Occupations: Analysis of the National Health and Wellness Survey 2014-2015”, which examines the impacts of obesity by different occupational classes on work productivity and indirect costs of missed work time.

BMI results were as follows:

  • Protective Services: 38% overweight, 39% obese
  • Transportation: 38% overweight, 36% obese
  • Manufacturing: 35% overweight, 30% obese
  • Education: 31% overweight, 30% obese
  • Healthcare: 31% overweight, 30% obese
  • Construction: 38% overweight, 29% obese
  • Hospitality: 32% overweight, 27% obese
  • Arts: 34% overweight, 26% obese
  • Finance: 36% overweight, 25% obese
  • Computer: 36% overweight, 25% obese
  • Legal: 38% overweight, 24% obese
  • Science: 37% overweight, 21% obese

The researchers concluded that there was a positive association between work productivity impairment and increases in BMI class that varied across occupations. Obesity had the greatest impact on work productivity in construction, followed by arts and hospitality, and health care occupations. Work impairment was least impacted by increases in BMI in Finance, Protective Services, Computers, Science, and Legal. It was estimated that the indirect costs associated with the highest BMI group in construction was $12,000 compared to $7,000 for those with normal BMI.

Would your floors pass the slip and fall test? 50% fail

Half of the floors tested for a slip-and-fall study failed to meet safety criteria, suggesting that many fall-prevention programs may overlook the effects of flooring selection and ongoing maintenance on slip resistance, according to a study by CNA Financial Corp.

Given the high frequency of slips and falls, these findings underscore the need for attention to floor safety and regular surface resistance testing to avoid fall accidents and related injuries.

Fatigue costs employers big bucks

Key findings from a recent study on fatigue by the National Safety Council (NSC) include:

  • More than 43 percent of all workers are sleep-deprived, and those most at risk work the night shift, long shifts or irregular shifts. As employees become tired, their safety performance decreases and their risk of accidental injury increases.
  • Missing out on sleep makes it three times as likely to be involved in an accident while driving. Also, missing as little as two hours of sleep is the equivalent of having three beers.
  • Employers can see lost productivity costs of between $1,200 to $3,100 per employee per year.
  • The construction industry has the highest number of on-the-job deaths annually. In a 1,000-employee national construction company, more than 250 are likely to have a sleep disorder, which increases the risk of being killed or hurt on the job.
  • A single employee with obstructive sleep apnea can cost an employer more than $3,000 in excess healthcare costs each year.
  • An employee with untreated insomnia is present but not productive for more than 10 full days of work annually, and accounts for at least $2,000 in excess healthcare costs each year.

Experts say employers can help combat fatigue by offering breaks, scheduling work when employees are most alert, and promoting the importance of sleep.

Workers welcome employers’ help in dealing with stress

Workers want their employers to offer assistance in coping with work-related stress, according to a new report from the American Heart Association’s CEO Roundtable.

The report also concludes that employees think more highly of employers offering resiliency programs. Valued programs include methods for dealing with difficult people, improving physical health, remaining calm under pressure, coping with work-related stress and accurately identifying the causes of work-related problems. It also includes actionable strategies for effective workplace resilience programs.

Supportive communication and work accommodation help older workers return to work

While early supportive contact with injured workers and offers of work accommodation are important to all injured workers, a recent webinar hosted by the Disability Management Employer Coalition (DMEC) and presented by Dr. Glenn Pransky, founder of the highly acclaimed, but now-defunct Center for Disability Research within the Liberty Mutual Research Institute for Safety, noted that these two strategies are particularly effective with older workers.

His research involved workers’ comp cases in New Hampshire related to low back and upper extremity problems. Negative responses, including lack of support, anger, disbelief, blaming the worker, or discouraging the worker from filing a claim resulted in significantly longer disability, and the effect was especially strong among older workers.

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

Visits by insurance loss prevention representatives to construction job sites can lead to fewer workplace injuries, according to a study by a Center for Construction Research and Training supported research team at the University of Minnesota. One contact was associated with a 27% reduction of risk of lost-time injury, two contacts with a 41% reduction of risk, and three or more contacts with a 28% reduction of risk, according to the study. The study also found that these visits are often low cost and that the reduction in lost-time injuries reduced workers’ comp costs.

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

Things you should know

NSC debuts Fatigue Cost Calculator for employers

A U.S. employer with 1,000 workers could lose about $1.4 million annually because of the effects of sleep deficiency, according to recent research from the National Safety Council (NSC) and the Brigham Health Sleep Matters Initiative. An estimated 40 percent of the workforce suffers from an undiagnosed sleep-related ailment, such as obstructive sleep apnea or insomnia. Sleep disorders can cause employees to miss work and experience performance and productivity issues, as well as increases in their health costs. They also can lead to work-related incidents and injuries.

Organizations now can see their portion of those costs – and their potential savings by implementing sleep health programs – with the new Fatigue Cost Calculator.

NIOSH launches software platform to monitor health of emergency responders

The National Institute for Occupational Safety and Health (NIOSH) has launched a software platform called ERHMS Info Manager to monitor the health and safety of emergency responders. ERHMS Info Manager tracks and monitors emergency response and recovery worker activities during all phases of emergency response following a natural disaster or other public health emergency.

EMS workers face higher occupational injury rates: NIOSH

Emergency medical services workers have higher rates of work-related injuries than the general workforce and three times the lost workday rate of all private-industry workers, according to a new fact sheet from NIOSH. The fact sheet identifies the actions that caused the most injuries and provides tips to prevent injuries.

Sharp drill bits decrease hazardous exposures during concrete drilling, researchers say

Workers who frequently drill concrete can reduce their exposure to noise, silica and vibration by regularly replacing dull drill bits with new, sharp ones, according to a recent study from the Center for Construction Research and Training, also known as CPWR. In three experiments the research team showed that a worker’s exposure to noise, tool vibration and airborne silica dust increases substantially as a bit wears down from continued use.

NIOSH releases skin-hazard profiles on nine chemicals

NIOSH has published nine new skin notation profiles to “alert workers and employers to the health risks of skin exposures to chemicals in the workplace. The chemicals include:

  • Arsenic and inorganic arsenic containing compounds
  • Disulfoton
  • Heptachlor
  • 1-Bromopropane
  • 2-Hydroxypropyl acrylate
  • Dimethyl sulfate
  • Tetraethyl lead
  • Tetramethyl lead
  • Trichloroethylene

New online toolkit to help keep workers and families safe on the roads

The Network of Employers for Traffic Safety is offering a free online toolkit to help employers keep workers and their families safe on the road.

The toolkit includes an interactive distracted driving self-assessment in which users answer questions about their driving habits. Other resources include fact sheets for employers and employees, pledge cards, a PowerPoint presentation, and graphics for social media and email use.

Coventry 4th and Final Drug Trends Series Report

Coventry has released the fourth and final installment of their 2016 Drug Trends Series, this one focusing on specialty medications and closed formularies. Specialty drugs are not utilized widely in workers’ comp, just 1.1 percent, but they do make up just about 5 percent of overall prescription costs. In the managed care world, utilization of specialty medications rose by 19.4 percent in scripts per claim and they saw a 7.9 percent increase in cost.

State News

California

  • Over 90% of all utilization review physicians’ modifications or denials of treatment that were reviewed by an independent medical review (IMR) doctor in were upheld according to a study by the Oakland-based California Workers’ Compensation Institute. About half of the IMR decisions so far this year were related to pharmaceutical requests and a small number of physicians account for a large portion of the claims.
  • The Workers’ Compensation Insurance Rating Bureau (WCRIB) released a report showing medical payments per claim dropped nine percent from 2014 to 2016. The researchers attribute that to a drop in utilization, there was a 10 percent decrease in paid transactions, but the average payment per paid transaction actually rose 4 percent, from $129 to $134.

New York

  • The Workers’ Compensation Board released new impairment guidelines, just meeting the deadline set by the Legislature last spring. The guidelines are used to determine schedule loss of use awards, which are additional cash payments to workers who have permanent or partial loss of the use of limbs, as well as vision and hearing loss.

North Carolina

  • Rate Bureau proposes 11.3% loss cost decrease. This filing will affect policies that are effective on and after April 1, 2018, and are applicable to new and renewal policies.
  • Employee misclassification complaints are up 644% in first half of 2017, reflecting the state’s crackdown on misclassification, which followed a yearlong investigation by the News & Observer in Raleigh and The Charlotte Observer.
  • Industrial Commission has stopped accepting motions from adjusters. Determining that the filing of motions constitutes the unauthorized practice of law, the Industrial Commission will no longer accept motions for relief filed by insurance adjusters.

Tennessee

  • NCCI recommends 12.2% rate drop. Drops will vary by industry, but most are in double digits.

 

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

Legal Corner

ADA
Extended leave not reasonable accommodation for employee who exhausted FMLA leave – 7th Circuit U.S. Court of Appeals

In Severson v. Heartland Woodcraft, an employee who worked a demanding job in spite of a degenerative spine condition injured his back at home and took a 12-week medical leave under the FMLA. On the last day of his leave, he had back surgery and asked for two or three more months to recover. It was denied and the employee filed suit under the ADA. A district court judge found in favor of the employer and, upon appeal, the 7th Circuit Court of Appeals noted “If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual'” as is defined in the ADA.

In so doing, the court reaffirmed a 2003 decision in Byrne v. Avon Products and rejected the Equal Employment Opportunity’s Commission’s request to revisit the decision.
FMLA
Workers’ Comp settlement doesn’t bar FMLA lawsuit against employer – 3rd Circuit Court of Appeals

In Zuber v. Boscov’s, an employee injured on the job missed two days of work and when he returned to work requested a week of FMLA leave, which was granted. About a month later, he was fired and filed suit that the company interfered with his rights under the FMLA, and that it had retaliated against him for filing his workers’ compensation claim.

The company argued that the employee waived his FMLA and common law rights in settling his comp claim and a district judge agreed. However, the Third Circuit found the language of the agreement, which stated that it was a final resolution of the work injury claim ‘and its sequela,’ doesn’t necessarily disallow a FMLA suit. Signing the agreement meant he could not bring a future workers’ compensation claim, but didn’t prohibit him from bringing FMLA or Pennsylvania common law claims.

Workers’ Compensation
Workers’ Compensation disability findings not binding in Social Security disability claim – United States

In Derosia v. Colvin, a federal district court found that an Administrative Law Judge (ALJ) had not erred in denying a claim for Social Security Disability Insurance Benefits. It is well accepted that Workers’ Compensation guidelines do not necessarily coincide with federal disability regulations and are not binding. However, the ALJ noted none of the workers’ compensation treating providers focused on work-related functions; rather, they provided statements concerning her ability to return to work.

Court clarifies length of psych benefits related to workplace injuries – Florida

In Utopia Home Care v. Alvarez, an employee was diagnosed with major depressive disorder after suffering a severe shoulder injury at work, but did not decide to seek indemnity benefits for her depression until almost two years after she reached MMI. A judge of compensation ruled that she was entitled to the benefits, believing that she could collect six months’ worth of psychiatric benefits anytime after reaching MMI, however the 1st DCA overturned the ruling. When a worker reaches maximum medical improvement, it “starts a clock” on remaining psychiatric benefits “that stops six months to the day after the date of physical MMI,” the court wrote.

Trial judge erred in overturning denial of authorization for surgery – Georgia

In Autozone v. Mesa, a delivery driver suffered injuries when a vehicle struck her delivery truck from behind. After a doctor cleared her to return to work, she continued to complain of back pain and underwent several MRIs. Four doctors found no abnormalities, but a fifth doctor, while finding no disc herniations or significant desiccation, recommended a surgical sacroiliac joint fusion. An independent medical evaluator disagreed.

An ALJ found that the sacroiliac surgery was not reasonable or necessary and the State Board of Workers’ Compensation agreed. A superior court judge later reversed the Board, finding the record contained “no objective medical evidence” that the proposed surgery was not reasonably required. However, the Court of Appeals said there was substantial competent evidence to deny the surgery and that the judge improperly took on the role of “fact finder”.

Pastor’s salary cannot be included in weekly wage calculations – Illinois

A worker at Nestle USA suffered two serious work-related injuries that led to temporary total disability benefits, temporary partial disability benefits, and medical expenses as well as wage differential benefits. During the time of his injuries, he also worked as a pastor and received a $600 per week housing allowance; however, the employer was not aware that he was being compensated, although they knew of the job. The 4th District Court of Appeals upheld earlier decisions, saying that his employer did not know he was being compensated for his duties as a pastor; therefore, his job as a pastor could not be included in the weekly wage calculations.

Slip and fall on wet pavement in employer’s parking lot not compensable – Illinois

In Dukich v. Illinois Workers’ Comp. Comm’n, an appellate court found that an employee who slipped and fell in a wet parking lot could not collect workers’ comp. The parking lot was clear of ice and snow and had no defects that caused the fall; therefore, the slip and fall accident arose from an activity of daily living. There was also no evidence that the employee was rushing to complete a work task or carrying items required for her work.

Requirements for employer to terminate rehabilitation clarified – Minnesota

In Halvorson v. B&F Fastener Supply, an employee injured her right elbow and knee and was awarded benefits that included rehabilitation. She took a part-time job with another employer and B&F Fastener Supply took steps to end the rehabilitation services. A compensation judge granted B&F’s request to discontinue rehabilitation services, but the Court of Appeals and the Supreme Court disagreed.

The company relied upon the argument that she no longer met the definition of a “qualified employee” under Minnesota Administrative Rule 5220.0100. But the court noted this rule does not provide an independent mechanism for an employer to terminate rehabilitation benefits. It also rejected the argument that a compensation judge could review, approve, modify or reject rehabilitation plans, noting this only applied to initial plan reviews.

Plan modification or termination may be accomplished only by meeting the requirements of Minn. Stat. § 176.102, subd. 8(a), which provides a nonexclusive list of reasons for terminating rehabilitation services under the good-cause standard, including “that the employee is not likely to benefit from further rehabilitation services.” The company acknowledged this might have been a better approach, since it could be argued her return to part-time employment eliminated the need for further rehabilitation services.

Testimony of worker’s colleagues leads to denial of claim – Mississippi

In Walker v. Kinder Morgan, an employee had a long history of back pain, which he had not shared with his employer. He was in a non-work motor vehicle accident and had to stay out of work because he was taking a muscle relaxer and pain medication and the employer did not allow mood-altering drugs. The day he returned to work, he said he experienced a sharp pain in his back, but did not report an injury because he had just returned to work. After a few days, he reported the injury and sought care from his family doctor, who recommended surgery.

While an administrative judge found the injury compensable, the Workers’ Compensation Commission reversed and was upheld by the Court of Appeals. It found the testimony of coworkers, which raised question if he was involved in horse play, how much pain he was in, and whether the pain was a result of the car accident, more compelling.

Standard for compensability of psyche injuries clarified – Missouri

In Mantia v. Missouri Department of Transportation, the Supreme Court unanimously overturned an award of benefits to a worker for her psychological injuries from witnessing horrific accidents on the state’s highways, saying she needed to prove her distress was “extraordinary and unusual” as compared to other similarly situated employees. According to her testimony on average, at least one accident a week involved a fatality and she graphically described some horrific scenes. She had worked for the Transportation Department for 20 years and had begun suffering from panic attacks and nightmares. She acknowledged her co-workers witnessed similar gruesome accidents, but they sometimes joked about it.

In reversing earlier decisions, the Supreme Court explained that Section 287.120.8 of the Workers’ Compensation Law limits the availability of benefits for mental injuries to those that are caused by work related-stress that is “extraordinary and unusual.” The court decided that the appropriate objective standard for determining whether the stress was compensable was “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.”

Blind worker’s volunteer activities did not warrant misrepresentation and forfeiture of benefits – New York

In the Matter of Eardley v. Unatego Central Sch. Dist., a janitor injured his right shoulder and neck and a WCJ found he was entitled to permanent total disability benefits. A surveillance video showed the employee walking around at a concession, helping to move a popcorn machine, and, on a separate occasion, helping his disabled daughter take money at a secondary admission for a non-profit’s football event.

After viewing the video footage, the school district accused him of having violated Workers’ Compensation Law Section 114-a(1), which provides for the forfeiture of a benefits if the worker has knowingly made a false statement or representation of material fact in order to secure the payment of benefits. A WCJ found that he had not violated Section 114-a(1), since the video footage did not demonstrate he had the ability to work, finding that such activities were minimal and not inconsistent with the representations that the employee made to the insurance carrier. This was upheld on further appeals.

Summary judgment on claim for fall overturned – New York

In Valente v. Lend Lease (US) Construction LMB, a construction worker slipped and fell on grease that had gotten on to the planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. A Supreme Court Justice and the Appellate Division’s 1st Department granted partial summary judgment, finding Valente’s fall was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” However, the Court of Appeals noted the testimony of the foreman conflicted with the employee’s claim about the safety devices available and, therefore, raised question as to whether the employee’s conduct was the sole proximate cause of the accident. The case was reversed and remanded.

Veteran airline mechanic entitled only to disability benefits based on federal minimum wage – North Carolina

In Myres v. Strom Aviation, an employee of an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry injured his ankle and a received 25% permanent partial disability rating. Several months after returning to work, he stopped working because of ankle pain. While working for the agency he received per diem payments as well as a wage. A deputy commissioner determined that the per diem payments were for business-related living expenses, not payments made in lieu of wages and the Court of Appeals agreed.

Without the per diem payments, his hourly rate of pay was $7.25, the federal minimum wage. Although the court recognized “it seems obvious that an aircraft mechanic with specialized training and over 20 years of experience would be paid far more than minimum wage,” it suggested the arrangement had benefits to both parties, but is a problem when an injury occurs.

Presumption of causal relation does not apply, but claims compensable – North Carolina

In Pine v. Wal-Mart Associates, a Wal-Mart employee tripped and fell and Wal-Mart accepted liability for injuries to her right shoulder and arm, but it denied liability for her other alleged medical conditions. The Industrial Commission said it was Wal-Mart’s burden to prove all the injuries were not causally related to her fall, since Wal-Mart had accepted liability for the injury to the right shoulder and arm.

This past summer the General Assembly abrogated the Supreme Court’s decision that an admission of compensability by an employer gives rise to a presumption that additional medical treatment received by a worker is causally related to the compensable injury. The Court of Appeals said the statutory amendment applied to this case, since the amendment applied to all claims “accrued or pending prior to, on, or after” the date on which the amendment became law. However, the court, in a divided opinion, found that the worker proved her injuries were causally related to her accident.

Terms of settlement extend employer’s obligation to treatment of condition it did not accept – Pennsylvania

In Haslam v. WCAB (London Grove Communication) an employee suffered multiple injuries and the company entered into an agreement accepting liability for fractures of the right and left feet, and it settled the indemnity portion of workers’ compensation claim for a lump sum of $110,000. The employee was taking compound medication prescriptions for complex regional pain syndrome and the company filed a request for a utilization review (UR), since this was a condition for which it had not accepted liability.

After a series of appeals, the Commonwealth Court ruled the UR process is the proper method for determining whether disputed treatment is reasonable and necessary, but it is not the proper method to determine the cause of an injury or condition shown in a settlement agreement. The court explained that once a settlement agreement is approved by a WCJ, it is final and binding on the parties, unless there is fraud, deception, duress or mistakes.

The court wrote, “In this case, Employer accepted responsibility for treatment for Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those feet. There exists an obvious connection between the injury and the pain. For Employer to avoid responsibility for the medical expenses resulting from treatment of the pain in Claimant’s feet, Employer must prove that the treatment is for an injury that is distinct from the acknowledged injury.”

Retaliation claim fails when employee cannot prove he intended to file comp claim – Pennsylvania

In Runion v. Equipment Transport, LLC, a federal district court construing Pennsylvania law, found that a former employee, who undisputedly suffered a work-related injury, had not established a prima facie case of retaliatory discharge. He had not filed a workers’ comp claim and the employer contended the dismissal was on unrelated grounds. While the former employee argued he had told his employer he intended to file a claim, he offered no support to corroborate his claim. In denying the retaliation charge, the court relied on findings in an earlier case that the worker must (1) report the work-related injury and (2) express the “intent to file” a workers’ compensation claim to the employer in order to trigger the protection of the public policy exception.

Award for disability and last employer’s liability for 90% upheld – Tennessee

In Gibson v. Southwest Tennessee Electric Membership Corp., an employee injured his back, reached a settlement, and returned to work. He continued to experience pain and a few months later his doctor took him off work and declared him to be permanently disabled. When a petition to modify his settlement was filed, a trial judge found the combined effects of his injury and pre-existing medical conditions permanently and totally disabled him. The judge assessed 90% of the liability to Southwest, and the remaining 10% to the Tennessee second Injury Fund and the Supreme Court’s Special Workers’ Compensation Appeals Panel agreed. In so doing, it noted that he is no longer able to walk for exercise, that he cannot work, that he takes pain medication and muscle relaxers, and that he has no other vocational skills or training, but he was able to work with no restrictions prior to his injury.

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

OSHA watch

Preliminary list of top ten violations includes Fall Protection – Training Requirements for first time

While the preliminary list of the Top 10 violations for Fiscal Year 2017 remains largely unchanged from 2016, there is a newcomer in ninth place- Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,072
  2. Hazard Communication (1910.1200) – 4,176
  3. Scaffolding (1926.451) – 3,288
  4. Respiratory Protection (1910.134) – 3,097
  5. Lockout/Tagout (1910.147) – 2,877
  6. Ladders (1926.1053) – 2,241
  7. Powered Industrial Trucks (1910.178) – 2,162
  8. Machine Guarding (1910.212) – 1,933
  9. Fall Protection – Training Requirements (1926.503) – 1,523
  10. Electrical – Wiring Methods (1910.305) – 1,405

Enforcement policy for construction silica standard announced: 30-day grace period

A memorandum explaining how the enforcement for the construction silica standard would proceed was issued shortly before the effective date of Sept. 23, 2017. For the first 30 days of enforcement employers who, in good faith, are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with Table 1 will not be issued citations. Instead, they will receive “compliance assistance and outreach.”

If during an inspection it appears that an employer is not making any efforts to comply with the standard, air monitoring will be conducted and citations may be issued. Additionally, the memorandum notes that inspection and citation guidance for its compliance officers and a compliance directive will soon follow.

One-year delay on crane operator certification requirements sought

In 2010 a final rule regulating cranes and derricks in the construction industry, Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926.1400, et al.) was promulgated and set to go into effect in November 2014. After a public comment period and concerns expressed by stakeholders, the agency extended the crane operator certification requirements from November 10, 2014 to November 10, 2017. During this three-year period, the intention was to develop a new standard that addressed operator qualification requirements. It’s now proposed to further delay the November 10, 2017 deadline by one year to November 10, 2018 to address the stakeholder concerns.

New PSM guide focuses on petroleum refineries

A guide intended to help oil refineries comply with the Process Safety Management Standard (1910.119) makes recommendations for employers to review their PSM programs to ensure violations are not present, and suggests ways to avoid specific violations within each PSM area.

Latest ‘Fatal Facts’ examines fall from forklift-elevated pallet

Detailing the death of a full-time warehouse worker who was killed after falling seven feet from a pallet to a lower level, the latest Fatal Facts, warns employees and employers about the dangers of falling from pallets raised by forklifts and advises employers on how to prevent such fatalities.

MIOSHA offers kit, video to help medical and dental offices comply with regs

The Michigan Occupational Safety and Health Administration has released a toolkit and video to help doctors and dentist offices comply with state health standards. The kit includes a compliance checklist for applicable MIOSHA health standards, posters, sample templates for required written policies, and training programs. To download the kit, visit www.michigan.gov/miosha, click on “A to Z Topic Index” on the left side of the page and then scroll to the letter “D” to find a section for “Doctors/Dentist Office.”
Enforcement notes

California

  • Cal/OSHA issued five citations and $51,160 in penalties to Aero Pacific Corp. in Placenta for safety violations after a worker was struck and killed by a moving spindle. Inspectors determined that, among other violations, the company failed to identify and correct machinery hazards in the workplace, and train workers on the control of hazardous energy.
  • Cal/OSHA issued five citations and $68,435 in penalties to RWC Building Products in San Marcos following the death of a worker who fell from a truck-mounted conveyor belt. Inspectors concluded that the company failed to ensure that workers were wearing approved personal fall protection equipment while unloading material onto a roof, did not perform periodic inspections to identify unsafe conditions and work practices at job delivery sites, and failed to provide effective training for supervisors to recognize safety and health hazard.

Florida

  • Following an inspection initiated by a complaint of unsafe work conditions, Hometown Foods USA dba Bagelmania Inc. in Medley was cited for 16 safety and health violations, including failing to ensure proper machine guarding on equipment, provide personal protective equipment, develop a lockout/tagout program, and develop a hearing conservation program. Proposed penalties are $129,145.

Illinois / Georgia

  • The Chicago facility of Atlanta-based BWAY Corp., a manufacturer of rigid metal, plastic, and hybrid containers, is facing $503,380 in proposed penalties and has been placed in the Severe Violator Program after four separate reports of employee injuries, three of which involved amputations. Included in the violations were repeated citations for failing to train workers in lockout/tagout procedures that prevent unintentional machine movement and inadequate machine guarding on a mechanical power press, belts and pulleys, and chains and sprockets.

Minnesota

  • Minnesota OSHA issued three citations and $184,100 in penalties to Visu-Sewer Inc., in Saint Paul for safety violations when a worker was fatally injured after becoming entangled in sewer lining equipment. Inspectors determined that the company failed to train workers in the recognition and avoidance of unsafe conditions, did not equip a hydraulic roller to cut off power, and allowed workers to use equipment modified from the manufacturer’s specifications for safe operation.

Nebraska

  • An administrative law judge of the OSHRC affirmed in part and vacated in part citations against a residential roofing contractor, Papillion-based Elite Builders Inc., that claimed the citations were issued with vindictive motivation and with an improperly executed warrant. The company was inspected twice and on the second inspection, it refused entry to the site and told the inspector to get a warrant. The judge rejected the arguments about the validity of the warrant and vindictive prosecution, but found the agency failed to prove the company did not provide adequate fall protection training as well as violations related to scaffolding construction and guardrails.

Pennsylvania

  • The OSHRC upheld a willful safety violation and vacated another violation in an incident that caused a four-story freestanding wall to fall on top of an adjacent Salvation Army retail store, killing six people inside and injuring 12 others. After the contractors were prosecuted criminally, the Commission settled the case with the general contractor, and then addressed the contractor who did the demolition. The central issue of the case was whether the contractor, Mr. Benschop, was an employer with an employee at the worksite or an employee of the general contractor. The Commission found that he was an employer and had willfully placed his employee in danger, but it applied a 20% discount to the penalty due to the small size of the employer, resulting in a final assessed penalty of $56,000.

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

HR Tip: Enforcement of joint employer liability for temporary worker safety remains strong

While OSHA has moved away from an enforcement-based strategy on many initiatives, OSHA’s deputy director of the Directorate of Enforcement Programs made it clear at a recent conference that the agency is continuing to enforce joint employer liability for temporary worker safety and plans to issue more guidance for employers. The agency conducted nearly 600 inspections of workplaces with temporary workers in fiscal year 2016 and is continuing to conduct these inspections.

In addition, in every inspection compliance officers are directed to look for the presence of temporary workers and the unique hazards they are exposed to. OSHA has issued seven bulletins providing guidance to employers as part of the temporary worker initiative on injury and illness record-keeping requirements, personal protective equipment, whistleblower protection rights, safety and health training, hazard communication, bloodborne pathogens, and powered industrial trucks training.

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

What works in Workers’ Comp: learning from others

Risk and Insurance has named the 2017 All Stars and the National Safety Council has announced the Rising Stars of Safety. Here are several of their stories that offer ideas and solutions to some common work comp challenges:

Risk and Insurance 2017 All Stars

Helping underwriters understand the risk

Faith Cring, director, Engineering, Environmental, Safety and Insurance, Growmark Inc., recognized that underwriters tend to be city-dwellers and don’t necessarily understand the risks of an agricultural cooperative. So she brings the underwriters out to the country to educate them about pesticide drift claims, grain siloes, and other realities of the agriculture business and doesn’t coach location managers on what to say to underwriters. Her goal is to develop long-term relationships with her carriers, so she can get tailored coverage for her business.

Tackling outstanding claims

When Kevin Moss, Director of Casualty Insurance and Risk, Michelin North America, launched Michelin’s largest comprehensive claim review, he learned that of the company’s 483 open claims, 186 high-value claims accounted for 83 percent of the outstanding liability. The first step was to review all claims and ensure they’re correctly reserved, and then move onto a plan for closure. He worked to make sure top management understood the business case for spending extra money to close a claim, if needed. He also recognized the human side of claim closure, especially for those who had legacy claims involving medical payments dating back to the 60s. In some cases, he went to people’s houses, bringing an annuity expert along, and explaining what settling the claim would mean.

Innovative ergonomic solutions

When Joe J. Mazza, director of risk management and the ADA coordinator at Mira Costa College, found that over a three year period there were nine claims, with an average cost of $19,446, for carpal tunnel syndrome, he knew he had to put a plan in place. He wanted a lasting change, but was working with a small budget ($20,000), so he trained to become an ergonomic evaluator. His hands-on approach enables him to see the whole picture and provide the best solution. And, if he found himself short on finances for a department, he would work with each department head to share the cost. From 2010 to today, the college reduced workers’ comp claims by 47.9%.

Working with adjusters

Tim Liberty, a senior claims consultant, Baldwin Krystyn Sherman Partners, tapped into his past experience as a senior claim specialist for Liberty Mutual to build positive working relationships with adjusters. He recognized that most people don’t like adjusters, but he understood their role and wanted to show them his appreciation. For example, he sent the chief claims officer of a major carrier an email complimenting the work of an adjuster who’d done an excellent job handing a claim and he routinely sends thank you notes to adjusters. Building strong relationships with carriers and adjusters, the company was able to ask for – and get – dedicated adjusters on certain accounts, and acceptance of special claims handling instructions in some cases.

National Safety Council Rising Stars

Raising incident prevention awareness

Lorenzo Drummond,Manager, EH&S, Mylan Pharmaceuticals Inc., led the Incident Prevention Opportunity (IPO) program and exceeded the company goal for each employee to report one IPO by 329 percent. He established a monthly IPO Hero award, that recognized employees monthly for their individual contributions, along with a $25 gift card. Departments were also recognized quarterly for having the most IPOs reported and received a trophy and a meal.

Getting the family involved

Bassma Hegazy, Senior HSE Assistant, Egyptian Liquefied Natural Gas (ELNG), initiated the Children’s Safety Day. The employee’s children spend a day on-site and learn about safety in school, street, playground and kitchen. “The campaign had a tremendous impact on employees and their families; it worked on driving the employees to lead by example and their children to act as safety ambassadors.”

Lowering the Experience Mod

By identifying, analyzing, and targeting the key indicators and root causes of the injuries that were occurring, Travis Keeney, Director of Safety & Training, Tri-City Electric Co., implemented a program that lowered the EMR from 0.93 to 0.58. Key components were targeted training, revising and developing new task procedures, improving PPE, and teaching other managers not to just enforce safety but be coaches to those in the field as well.

Strengthening the safety audit

Awadh Fazal, HSE Manager, Coca-Cola Beverages Pakistan Ltd. initiated management safety audit training for all his peers and management staff, focusing on how to observe unsafe conditions/acts at sites during safety patrols and audits, how to record them, how to make contact with an employee, and how to maintain a strong follow-up until the observation is closed. A WhatsApp group was created for all employees, and it was mandatory for employees to share the status of observations of the group and also report unsafe conditions/acts.

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

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

Legal Corner

FMLA
Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.


Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.


Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.


Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.


Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.


Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”


Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.


Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.


Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.


Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.


Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.


Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”


Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.


Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.


Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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

OSHA watch

Injury tracking application restored

The application launched on Aug. 1, as part of the compliance effort for its controversial electronic record-keeping rule, but a note on the website two weeks later said technical difficulties were making some of the ITA pages unavailable. A technology scan confirmed that there was no security breach and the application was restored.


Comments sought on lockout/tagout

The agency plans to issue a request for information in April 2018 regarding potential updates to its lockout/tagout standard, a frequently cited violation that is increasingly deemed out of date. There has been an increase in the variance requests because advances in technology that incorporate computer-based control of hazardous energy are increasingly used in machines and can conflict with the existing lockout/tagout standard.

Employer faces over $1 million in fines, including first walking-working surfaces violations

Shortly after the requirements under new Subpart D, “Walking-Working Surfaces (WWS),” became effective, Aluminum Shapes LLC of New Jersey Camden County was inspected and cited for 51 safety and health violations with proposed penalties of $1,922,895. Among the citations were fixed ladders, portable ladders, skylights, stairs, loading docks, and other walking-working surfaces that were not compliant. One violation for failure to ensure that the side rails of a ladder extended 42 inches above the top of the access level or landing platform served by the ladder resulted in a proposed penalty of $9,959.


Website changes

  • Data on workplace fatalities removed from home page, continuing shift away from policy of public shaming
  • The publication webpage is now formatted for all devices and has been reorganized
  • More employer stories added to heat protection pages

Trench safety symposium webinar available online

Conducted in conjunction with the National Utility Contractors Association, and the University of Texas at Arlington, the symposium focused on ways to prevent trenching and excavation hazards in the construction industry.

Safety training videos for tobacco farm workers

The North Carolina Department of Labor’s Agriculture Safety and Health Bureau, the Farm Labor Practices Group, NC State University and industry stakeholders collaborated to produce safety training videos addressing agricultural safety and health hazards faced by tobacco farm workers.

Enforcement notes

California

  • Crenshaw Manufacturing Inc. in Huntington Beach received six citations and $142,715 in penalties after a worker had three fingers amputated while manually loading products into an operating punch press. Fines relate to machine guarding, failure to conduct regular inspections, and lack of training.
  • Santa Ana-based Triumph Processing- Embee Division, Inc. plant, manufacturer of aircraft parts, received a total of 23 citations, totaling proposed fines of $87,500 for exposing workers to the dangerous chemical hexavalent chromium (chromium-6), and not notifying workers that they knew or try to protect workers from exposure.

Florida

  • Jacksonville-based Great White Construction Inc., a roofing contractor, faces penalties of more than $1.5 million for 14 workplace safety violations and has been placed in the Severe Violator Enforcement Program due to high-gravity, willful, egregious violations related to fall hazards.
  • An administrative law judge has vacated two citations issued against Riverview-based Central Site Development L.L.C. involving a fatality of a worker of a subcontractor. The company had received two citations under the general duty clause, but the judge found the multiemployer worksite doctrine does not apply to citations issued under the general duty clause.

Massachusetts

  • UHS of Westwood Pembroke, Inc. – doing business as Lowell Treatment Center, a behavioral health facility, faces $207,690 in proposed penalties for failure to abate violations involving workplace violence.
  • An administrative law judge upheld citations and $4,000 in penalties assessed against a contractor, Chris Welch, for failing to provide fall protection and appropriate ladders for his workers who were working on a roof of a house in Springfield.
  • An administrative law judge has affirmed citations and proposed fines issued against a roofing contractor, William Trahant Jr. Construction Inc. in Lynn, who failed to show at his scheduled commission hearing. Penalties are $43,560 for failure to provide fall protection or hard hats.

New York

  • Carthage Specialty Paperboard is facing $357,445 in proposed penalties for more than 60 safety and health hazards, including more than 20 instances of machinery lacking safety guards to prevent possible amputation.

Pennsylvania

  • An administrative law judge upheld citations against Montgomeryville-based Lloyd Industries Inc.’s facility after a worker’s three fingers were amputated when a machine without safety guards crushed his hand. Proposed total penalties are $822,000.

Wisconsin

  • Marshfield-based Felker Brothers Corp., a manufacturer of steel pipes and tubes is facing $110,458 in proposed fines after a worker was struck by a machinery part and suffered a shattered jaw and concussion, a worker was exposed to hexavalent chromium at levels 1.8% higher than the permissible exposure limit and other violations.

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