Watch out for 20 costly workers’ comp mistakes in 2020: Part One (1 – 10)

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not taking a holistic view of injured employeesRegardless of the size or type of claim, there’s been an overarching shift in treating injured employees as consumers, rather than claimants. This means not only advocating for them and giving them support and a voice in handling claims, but also recognizing the social and economic factors that affect recovery, and the psychology of pain. Taking the time to understand the needs of the individual employee both improves claim outcomes and bolsters employee morale.
  2. Relaxing claims monitoringWhen claims are down, it’s easy to divert attention elsewhere and leave the claim to the adjuster. Yet, three to five percent of claims drive 50 to 60 percent of the cost and it doesn’t take a catastrophic injury to create a complex, costly claim. Delayed recovery, which can be caused by co-morbidities, psychological or family problems, employment issues, attorney involvement, or prescription abuse increases the duration and cost of a claim. Early identification of these potential high-cost claims reduces costs.

    Also, when legacy claims linger on autopilot, by default, the employer commits to costly ongoing medical care that often involves opioids. While the industry has done a good job of controlling opioid prescribing for new claims, regular intervention is necessary for older claims to accelerate settlements and improve pain management.

  3. Not recognizing marijuana is here to stayThe continuing trend of states legalizing marijuana for both medical and recreational use in spite of the federal ban has made it one of the top challenges in maintaining a safe workplace. Staying abreast of evolving laws and cases, as well as a clearly defined policy on how marijuana will be addressed in the workplace, are necessary to ensure the safety of all workers and decrease the likelihood of adverse employment actions. Shifting cultural acceptance of marijuana as well as its legalization in many states means that employers need to thoughtfully evaluate their drug testing policies.

    Case law in 2019 moved toward protecting the medical use of marijuana in the workplace. Sixteen states provide workplace protections for legalized medical marijuana use either through their statutes or through case law, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia, and Massachusetts.

    Experts postulate that there will be more law suits from employees or job applicants who were terminated or not hired because they failed a drug test and take medical marijuana. Further, the question of marijuana as treatment in workers’ comp claims will continue to be a hot issue in 2020.

  4. Failing to understand what’s happening at OSHAWhile many observers expected a decline in the number of OSHA workplace inspections, they increased to 33,401 in FY2019, higher than in any year since 2015. There’s been a record number of $100,000+ citations, higher penalties, more willful and repeat citations, as well as worker safety criminal prosecutions.

    On October 1, OSHA implemented major changes to how it prioritizes inspections and other compliance activities. Factors now considered in inspection weighting include:

    • Agency enforcement priorities
    • Impact of inspections on improving workplace safety
    • Hazards inspected and abated
    • Site-Specific Targeting (SST) program objective

    Further, the agency announced that it is moving away from its long focus on “OSHA recordables” as a way to measure the safety of a workforce and will focus its enforcement efforts on leading indicators, which are proactive.

  5. Failing to properly classify employeesWhile the contractor vs. employee status debate has existed for many years, it ramped up in 2019 and is expected to be a hot issue in 2020. Some estimate that over 30% of the workforce is part of the gig economy. With the passage of AB5 in California and a growing number of court cases, expect to see more legislation and court cases.
  6. Developing a false sense of security from distracted driving policiesOver the past five years, motor vehicle accident claims accounted for 28% of workers’ comp claims over $500,000. They now account for more worker fatalities than any other cause and savvy employers know they have to go beyond state laws to develop best practices. Employers are being held liable for employee crashes, even when employees use hand-free devices. The National Safety Council considers hands-free devices to be just as distracting as hand-held devices while driving.

    A distracted driving policy is only the beginning. It must be implemented, updated, and consequences for non-compliance enforced. There are growing options for discovering violations – locking devices, GPS monitoring, in-vehicle cameras, and so on.

  7. Being unprepared for workplace violenceWith more high-profile workplace shootings, fear of workplace violence is on the rise. According to the Society for Human Resource Management (SHRM), one in seven workers do not feel safe at work. Unfortunately, incidents and attitudes that lead to workplace violence are a reality at all workplaces. Workers feel safer and more valued when investment is made in security and preparation.
  8. Not reassessing your PPEWhen NASA was forced to cancel the first-ever spacewalk by two women because it did not have two appropriate space suits, social media erupted with stories from women in all industries about ill-fitting or no PPE. Through continued advancement and technological changes, “smart” PPE with sensors that monitor, collect, and record biometric, location, and movement data is on the rise. In addition, employees’ personal preferences and increased comfort have driven new innovations.

    Providing the right PPE is another way companies can recruit and retain more talent.

  9. Ignoring changes in workplace ergonomicsMusculoskeletal disorders (MSDs) develop over time, but are highly preventable at a reasonable cost. Yet, they account for close to one-third of all occupational injuries and illnesses and have a median of nine days away from work.

    New technologies and devices, an aging workforce, temporary workers, more employees working remotely, the dramatic shift to e-commerce, coupled with massive changes in warehousing and office designs have introduced new ergonomic challenges. Moreover, employees want to work in a comfortable environment and embrace employers that take a holistic approach to ergonomics. A 2019 study by Future Workplace and View found that air quality and natural light were most important to employees, topping fitness facilities.

    Addressing new potential ergonomic risks now will prevent costly injuries in the future, improve productivity, and retain talent.

  10. Failing to stay in touch with your medical provider networkPerhaps you’ve had a few good years with no lost-time injuries. No real need to stay in touch with your medical network. But networks and providers change as do work processes. An ongoing face-to-face relationship ensures your workers get appropriate and priority treatment as well as leads to better outcomes for injured employees.

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

Pennsylvania – First state ruling on termination for medical marijuana

In Pamela Palmiter v. Commonwealth Health Systems Inc. et al, the Court of Common Pleas of Lackawanna County in Scranton held that a worker terminated for her medical marijuana use can pursue litigation against her former employer under the state Medical Marijuana Act’s anti-discrimination provisions. The employee was a medical assistant, who was prescribed marijuana by her physician for chronic pain, migraines, and persistent fatigue.

When her original employer was taken over by Franklin, Tennessee-based Commonwealth Health, she failed a drug test and was advised she could not continue employment.

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

Culture Issues: Having a Good Culture is More than being OSHA & HR Compliant (Benchmarking Your Culture)

If you cannot measure it, you cannot improve it.” – Sir William Thomson (Lord Kelvin).

Sure, you can think you’re improving something, but unless you know what the problem was in the first place you can’t truly fix it, and if you don’t truly fix it your improvement is nothing more than band-aid surgery. For example, a baseball player is in a deep slump and can’t hit a lick. Suddenly he’s goes four for five in a game and thinks he solved his problem. But what caused the problem? Without analyzing and benchmarking what he’s been doing all along, i.e. the angle of his bat, how high he holds his hands, the all-important “launch angle,” he will not have a true measure of if he is on the right track or just “having a good day.”

This is not uncommon in the business world. Let’s take for example your experience modifier, which is one of the biggest drivers of an employer’s workers’ compensation premium. The lower your experience modifier is the lower your premium will be.

Your experience modifier is based on your data, total claim dollars and audited payroll amounts over a three-year period.  Unfortunately, most insurance agents will come to you and say: “You have a 0.94 experience modifier. That is great! You are getting a credit of 6% for a great loss history.” In other words, your company is making money. Therefore, you must be stressing to your employees to be job safety conscious. But that’s not automatically the case.

Many times a business owner believes because they are making money they have a good culture, so all is good.  However, when they conduct an analysis, and do a deep dive into the all-important data points, they can see that there are issues within the company that is holding them back from real growth, productivity, accountability and profitability. From making real money.

To Continue Reading: Construction Today Magazine

Culture Issues: Accountability When it Comes to Job Performance

Close your eyes and imagine you’re the manager of a professional baseball team, it’s Game 7, bottom of the ninth, two outs, your team is up 3-2 with the tying run on third base, and the winning run on first base. Batter hits a fly ball to the gap in right center field, and the base runners go on contact. The center fielder starts to sprint… if he catches it – game over; if he plays it on one hop – the score is tied with the winning run in scoring position. The center fielder dives at full speed, lands on the ground as the ball just skips over his glove… the 3rd base runner ties the score as the ball continues to roll all the way to the warning track allowing the 1st base runner to score – the game is over and you lost.

Now, as the manager of the team, what is your reaction?  Do you “back” your fielder and compliment him on making a rational decision? Or, do you hold him “accountable”, by laying blame and berating the player for making a bad choice?

Continue to read at: Commercial Construction & Renovation

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

 

OSHA alert: Form 300A deadlines approaching

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The information can potentially be used to target inspections; therefore, employers should carefully ensure they submit accurate records.

Two important dates are approaching:

Form 300A posting deadline: February 1, 2020

The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, no later than February 1, 2020, and kept in place until April 30.

For the forms

For access to Online OSHA 300/300A/301 reporting software: OSHA 300 Software

Form 300A electronic submission deadline: March 2, 2020

Under the electronic record-keeping rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must submit the form electronically to OSHA by March 2, 2020, using the Injury Tracking Application on OSHA’s website. OSHA began accepting forms on Jan. 2, 2020.

Remember, not all establishments with 250 or more employees need to submit their OSHA 300A data electronically. To review which establishments are exempt, click here.

Important note: In reporting 2019 data, establishments must now provide their Employer Identification Numbers (EIN). You’ll want to have that ready as you go to fill out the Injury Tracking Application.

What has to be recorded?

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work-relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work-related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2019 include:

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. Even if there were no recordable incidents in 2019, companies required to maintain records still must post (and electronically submit, if applicable) the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

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

Things you should know

BLS report on injuries and illnesses

Nonfatal occupational illnesses and injuries held steady in 2018 at 2.8 per 100 workers, marking the first time since 2009 that they did not decline, according to the Bureau of Labor Statistics (BLS). The total number of nonfatal workplace injuries and illnesses reported by private industry employers also remained unchanged last year compared to 2017, at 2.8 million. For the first time, the report included the number of visits to medical treatment facilities for nonfatal occupational injuries that required days away from work, which totaled 333,830 cases. Just over 39,000 of those involved in-patient hospitalization.

Retail was the only industry to report an increase in total recordable cases, although subsectors of other industries also saw increases.

Slips and falls mean high comp payouts in retail

Retail industry workers miss an average of 24 days of work due to injuries, according to a report by AmTrust Financial Services Inc. The highest claims payouts in retail were attributed to injuries from slips or falls from ladders or scaffolding at an average of $21,000 per claim; strains or repetitive motion injuries, averaging $14,000 per claim; and motor vehicle collisions, averaging $13,900 per claim. Nearly a quarter of all payouts were associated with lifting injuries.

Among retailers, the most hazardous classes included meat, fish or poultry retailers, hardware stores, automobile parts and accessories stores, and barbershops or hair styling.

New report on work-related MSD’s in construction

recent report from the Center for Construction Research and Training (CPWR) finds that although work-related MSDs in construction have declined, the number of days away from work (DAFW) has increased. DAFW grew from eight in 1992 to 13 in 2017.

The report also includes resources to help reduce MSDs.

New government guidelines address weaning patients off opioids

The CDC’s guidelines on opioid prescribing three years ago were well received by the worker compensation sector. New guidelines, issued by the U.S. Department of Health and Human Services on Oct. 10, are meant to give doctors a better grip on tapering off opioids, do not call for eliminating them from a patient’s care when “the benefit of using opioids outweighs the risk,” and provide “advice to clinicians who are contemplating or initiating a change in opioid dosage.”

Incentives for wearing tracking devices can trigger creative cheating

recent article in the Huffington Post suggests that employees get ingenious when they fall behind in meeting their targets. Strapping the tracker to the pet hedgehog, giving it to their children to wear, or putting it in a sock in the dryer (a permanent-press cycle is about 10,000 steps) and letting it roll are some of the ways they’ve gamed the system.

EPA modifies regulations for chemical storage

The Risk Management Program Reconsideration Rule, removes the requirement that companies publicly disclose the chemicals stored on their grounds, rescinds third-party audits and incident investigation root cause analysis, and mandates and modifies emergency planning and response requirements.

Early PT reduces visits and costs

Injured workers who start therapy within three days of injury require 38 percent fewer physical therapy visits to achieve successful outcomes, according to a white paper by One Call, a healthcare management company. “However, if an injured worker starts conservative care more than 30 days post-injury, the time to discharge increases from less than three weeks to nearly six weeks.”

Three new resources to help manage the use of nanomaterials

The Center for Construction Research and Training (CPWR) released three new Toolbox Talks, each in English and in Spanish, to help the construction industry manage the potential dangers of nanomaterials:

  • Identifying Nano-Enabled Construction Materials
  • Introduction: Nano-Enabled Construction Materials
  • Prevent Exposure: Nano-Enabled Construction Materials

New video series aimed at raising worker awareness of MSDs

A new virtual toolkit from the European Agency for Safety and Health at Work, also known as EU-OSHA, consists of a series of videos aimed at helping workers understand their risk of musculoskeletal disorders and how to prevent them. Each of the 14 videos in the Understanding Musculoskeletal Disorders toolkit features Napo, an animated 3D character.

Illicit drug tool kit for first responders

A new virtual toolkit from NIOSH is intended to help protect first responders from exposure to illicit drugs, including fentanyl.

State News

California

  • The Insurance Commission lowered the average advisory pure premium rate benchmark to $1.52 per $100 of payroll, effective Jan. 1, 2020 from $1.99 per $100 of payroll in July 2019.
  • AB5, which changes the criteria used to classify employees and independent contractors, goes into effect Jan.1, 2020. Some estimate that nearly 2 out of 3 workers who are classified as independent contractors will be affected.
  • The Department of Industrial Relations, Division of Workers’ Compensation may be delaying injured workers’ access to benefits and increasing costs to employers, according to a state audit report that found the division does not have enough qualified medical examiners to handle caseloads.
  • The Division of Workers’ Compensation reminds claims administrators that report of claim counts for calendar year 2019 is due April 1.

Florida

  • The 7.5 percent rate reduction demanded by the Office of Insurance Regulation will take effect Jan.1.

Illinois

  • The Cannabis Regulation and Tax Act (“CRTA”) goes into effect January 1, 2020 and the state took the additional step of amending the Right to Privacy Act to include cannabis within the definition of lawful products. This prohibits employers from taking adverse actions (refusing to hire, terminating, demoting) against employees because they use a lawful product while not at work. The CRTA sets forth several factors regarding the discipline or discharge of an employee.
  • The Workplace Transparency Act (“WTA”) goes into effect January 2020 and bars employers from unilaterally requiring that a current or prospective employee waive, arbitrate, “or otherwise diminish” existing or future claims, rights, or benefits related to unlawful discrimination, harassment, or retaliation.
  • The average medical payment per claim with more than seven days of lost time was more than 15 percent higher than the median of 18 states studied, according to a recent study by the Workers Compensation Research Institute (WCRI).

Minnesota

  • A new regulation provides that workers may be eligible for vocational rehabilitation services if they need help returning to work after an injury and if their employer cannot meet their work restrictions. A rehabilitation invoice penalty warning has been added to its state workers’ comp policies. Claims administrators have 30 days to pay or deny rehabilitation services. If they do not meet this deadline, they could be fined up to $2,000.

Missouri

  • The Division of Workers’ Compensation announced that the supplemental surcharge for the fund will drop from 3% to 2% starting Jan. 1. The supplemental surcharge is billed quarterly and is based on net premiums.

Nebraska

  • Legislative bill 418 states that if a workplace injury results in a death of an immigrant, the consular officer of the nation in which the employee is a citizen is regarded as the sole legal representative of any dependents residing outside of the U.S. Prior to final settlements, non-resident dependents may file with the Workers’ Compensation Court a power of attorney designating any suitable person residing in the state to act as attorney.

    The bill also states that service providers, collection agencies and creditors cannot attempt to collect a debt from an injured worker or their spouse for treatment of a work-related injury if the matter is pending in the Workers’ Compensation Court.

New York

  • The drug formulary goes into effect December 5. Any new prescription must be for a formulary drug, and a provider must obtain prior authorization for any non-formulary drug before writing a new prescription.
  • The Workers’ Compensation Board has dropped the assessment rate on employers for 2020 to 12.2% from 12.6% in 2019. The assessment is used to fund the administration of the workers’ compensation system, and to fund benefits paid to volunteer firefighters and ambulance workers.

North Carolina

  • The Industrial Commission has formed the Criminal Investigations and Employee Classification Division to focus on the misclassification of employees and premium fraud.

Pennsylvania

  • The Supreme Court ruled that the fluctuating workweek (FWW) pay method is not a proper method of overtime pay calculation under the Minimum Wage Act (PMWA). Employers using this pay method for non-exempt, salaried workers should take immediate action to review and revise their compensation method for these employees.
  • Beginning in October 2020, employers in the construction industry will be required to use E-Verify, the federal government’s web-based program that allows employers to verify an employee’s work-authorization electronically.

Virginia

  • The WCRI reports that reimbursement for physicians and other providers dropped 14% from 2017 prices after the fee schedule took effect in January 2018. There were 36 states in the study and the state moved from sixth-highest in 2017 to 12th, and was the only state that showed a significant decrease in prices for professional medical services.

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

Legal Corner

ADA
Lawsuit alleging wrongful termination because perceived-as disabled reinstated

In Paula E. Babb v. Maryville Anesthesiologists P.C., a nurse anesthesiologist contends that Tennessee-based Maryville Anesthesiologists P.C., fired her because it thought she was visually disabled. She acknowledges an eye condition that requires her to hold written records close to her eyes, but argues it does not inhibit her ability to read.

The company, however, says she was fired because of two serious errors that put patients at risk. But an email was circulated to staff saying that she was fired because she “has been having major issues with her eyesight and as of late, it has seemed to be getting even worse.”

The Sixth Circuit finds that the email and other evidence present a triable case of regarded-as disability discrimination under the ADA and reinstates the case.

EEOC disability suit settled for $2.65 million

Crossmark, a company that provides workers to dispense free food samples to shoppers, allegedly failed to provide a reasonable accommodation by not allowing its employees to sit for more than 10 minutes every two hours. The Equal Employment Opportunity Commission (EEOC) noted some employees were permitted to sit as needed when they performed the same job while working directly for the retailers.

The firm agreed to pay $2.65 million and designate ADA coordinators to address accommodation requests, among other provisions.

Workers’ Compensation

Tort claim for lead poisoning barred by exclusive remedy – California

In an unpublished opinion, Deville v. Bloch, the company, Exide, was ordered to suspend operations in Vernon because plant operations were causing the discharge of illegal amounts of lead into the air, water, and soil. Before the plant’s closing, a long-term worker at the hazardous waste treatment and storage plant lost consciousness while cleaning one of the facility’s furnaces. More than three years later he sued, alleging unspecified injuries caused by exposure to lead and other hazardous chemicals.

The appellate court upheld the dismissal of the claim, agreeing workers’ comp exclusive remedy applied. The allegations that Exide knew the employees faced a risk of harm from exposure to lead and other chemicals were not enough to invoke the fraudulent concealment exception to workers’ compensation exclusivity.

Workers over 70 have five-year statutory limit on PTD benefits – Florida

In Crispin v. Orlando Rehabilitation Group, the 1st District Court of Appeals ruled that a worker over the age of 70 is statutorily limited to permanent total disability benefits for a calendar period of five years after she is determined to be permanently and totally disabled. According to the court, eligibility for PTD payments ends five years to the day after the worker is determined to be permanently and totally disabled.

Undocumented worker denied medical care for injury – Florida

In Hernandez v. Food Mkt. Corp., an appellate court upheld the ruling that an undocumented worker who sustained injuries in a work-related accident can be denied benefits on the basis that he used someone else’s Social Security Number (SSN) when completing an intake form at a medical provider. By so doing, the court noted the injured worker had offered a false or misleading statement to secure workers’ compensation benefits.

Pre-existing condition does not negate continuation of medical treatment – Florida

In Premier Community Healthcare Group v. Rivera, a divided appeals court ruled that a dental assistant who was injured while preventing a patient from falling, but had a previous medical condition related to a car accident, must continue to receive benefits. The employer and insurer initially accepted compensability of injuries to the low back and neck, but later denied claims for cervical injections and physical therapy when her medical history revealed that she had a prior motor vehicle accident and previous neck symptoms.

The carrier presented two doctors who testified that the workplace injury is not the major contributing cause of the need for medical treatment of the cervical spine. However, in a divided opinion, the court upheld the JCC’s opinion the worker’s doctor was more persuasive.

JCC may not ignore opinion of expert medical advisor – Florida

In Olvera v. Hernandez Constr. of SW Fla. Inc., although an Expert Medical Advisor (EMA) indicated in his report that a worker had not reached MMI because future surgery was required, a Judge of Compensation Claims (JCC) found that the worker had reached MMI. An appellate court found that the JCC’s decision, which was made based on the EMA’s answer to one leading hypothetical question on cross-examination, was in error because the JCC cannot disregard the presumed correctness of an unequivocal EMA.

Civil suit can proceed in workplace parking lot shooting – Georgia

In Smith v. Camarena, the estate of a worker who was killed in a grocery store parking lot after finishing her shift filed a civil suit against her employer. The woman and a co-worker were approached by a masked gunman who demanded their purses. An assistant manager was driving by and called to the gunman and shots were exchanged and the woman was killed. While a trial court denied the suit based on the exclusive remedy of workers comp, the Court of Appeals said it could proceed.

Although it is undisputed that she had left work, the employer argued she was “within the period of her employment under the ingress/egress rule.” Noting the parking lot was owned by the store’s landlord and served several other stores, the appellate courts said there is a question of whether the location was part of the employer’s premises and a jury should decide if the shooting occurred in the course of employment.

TTD denied for failure to follow work restrictions – Georgia

In Burch v. STF Foods Inc., the Court of Appeals ruled that a restaurant worker, who had injured his back and had received written restrictions from the restaurant’s owner, was not entitled to temporary total disability benefits after being fired for failing to abide by the lifting restrictions. Despite the instructions, he continued to lift heavy items, received warnings, and suffered additional injuries to the back/shoulder area.

When he was fired for insubordination, he filed for workers comp and an administrative law judge (ALJ) found in his favor, finding his restrictions were related to his work injury. Upon appeal, the court found the ALJ had erred and that the worker failed to prove any loss of earning capacity was attributable to his compensable work injuries, but rather was due to subordination.

Case to watch: McDonalds’ employees in Chicago sue over workplace violence – Illinois

Seventeen Chicago-area workers filed suit in the Circuit Court of Cook County claiming that the “Experience of the Future” store renovations makes it easier for angry customers to leap over the counter and attack them. The suit claims that in the Chicago area, there are more than 20 calls every day to emergency services from McDonald’s stores and that the company ignores practices that could make the stores safer.

Drainage contractor found guilty of manslaughter in workers’ deaths – Massachusetts

Atlantic Drain Services of Blackstone had been cited by OSHA in 2007, 2012 and again in 2017 after two workers drowned when a trench collapsed. The company was fined $1.47 million in 2017. Three years later, Atlantic Drain owner Kevin Otto and his company were separately found guilty of two counts of manslaughter and one count of witness intimidation in Superior Court.

In addition to failing to use cave-in protection and placing employees in severe danger, it was alleged that the company attempted to mislead the investigation by falsifying documents, including sign-in sheets for excavation and trenching training, as well as workers’ signed acknowledgment of receiving personal safety equipment.

The owner faces up to 20 years in prison and fines up to $250,000.

City agrees to pay workers comp, a wrongful termination claim, and hold open the possibility of a future asbestos-related claim – Michigan

The East Lansing City Council has agreed to pay a former wastewater treatment plant employee $125,000 to settle a workers’ compensation claim and a wrongful termination lawsuit. He alleged he was fired because he reported health and safety violations to state agencies and because he filed a workers’ compensation claim. He also claimed respiratory damage from asbestos and a mercury spill at the facility and the city agreed he could file a claim in the future if he is diagnosed with an asbestos-related illness.

No causal connection between tinnitus and work-related fight – Missouri

In Schlereth v. Aramark Uniform Servs., a state appellate court panel affirmed a Commission decision concluding that a supervisor’s tinnitus was not caused by a work-related brawl that resulted from the supervisor’s crude characterization of a subordinate’s work. Although he did sustain obvious injuries to the face and head, he did not seek benefits until three years later after he received social security benefits.

In spite of surgery complications, worker fails to prove medical causation of sinus cavity clot – Nebraska

In Homstad v. Block 21, LLC, a worker underwent knee surgery for a work-related injury and suffered a deep venous thrombosis (DVT) in his thigh, as well as a pulmonary embolism. Later, he contended that a blood clot in his sinus cavity was causally connected to the earlier injury and surgery. The medical experts were cautious, neither confirming or denying, the causation. Thus, an appellate court upheld the Workers’ Compensation Court decision that the worker had not met the burden of proof.

Workplace fire did not conclusively cause lung disease – Nebraska

In Pennington v. SpartanNash Co., a three-judge panel of the Court of Appeals affirmed a Workers Compensation Court decision that a worker with lung disease failed to show that his illness was brought on by a workplace fire. He worked as a store manager for Michigan-based food distributor SpartanNash and put out a small fire in an unused walk-in freezer. Although he did not seek medical treatment at the time, a few days later he fainted and was referred to a pulmonologist, who diagnosed pneumonitis and ordered him to stop working. His treating physician wrote a letter stating that his pneumonitis and symptoms were “more likely than not” a result of the chemical and smoke exposure, and a second physician opined that his exposure on the day of the fire more likely than not resulted in his lung disease. The company’s medical expert said the cause could not be determined with certainty.

The court found that his medical experts failed to provide sufficient support for their opinions.

Construction company operator, foreperson, and engineer indicted for manslaughter in death of laborer following wall collapse – New York

Owners and managers of WSC Group LLC, a Sunset Park construction company, have been indicted on manslaughter, negligent homicide and workers’ compensation insurance fraud some 14 months after a wall collapsed and killed a welder at an excavation site in Brooklyn.

Worker employee, not independent contractor – North Carolina

In Macias v. BSI Associates Inc., a worker was injured while working for the Carolina Chimney Crew, settled the claim, and agreed not to work for the company in the future. The following year, the owner suggested the former employee start his own company, purchase the necessary insurance, and work as an independent contractor for him. His insurance indicated zero employees and he excluded himself from coverage.

The company furnished vehicles, tools, equipment and supplies, business cards, Carolina Chimney Crew clothing, and provided specific instructions on where he was to work and what work he was to perform each day. He resumed his work in almost identical fashion as when he was an employee and a few years later fell from a scaffold and fractured his spine.

While the claim for workers’ comp was denied by the company’s insurer based on his status as an independent contractor, a three-judge panel of the Court of Appeals unanimously affirmed an Industrial Commission decision holding that the injured man was an employee, not an independent contractor, and, therefore, entitled to workers compensation.

Definition of employer’s premises clarified in parking lot decision – Pennsylvania

In US Airways v. Workers Compensation Appeal Board, a 6 – 0 decision of the Supreme Court’s Western District in Pittsburgh affirmed a workers compensation judge’s finding that a flight attendant was in the course and scope of her work when she was injured. The flight attendant was injured after her shift ended while riding an airport shuttle bus to an employee parking lot. The City of Philadelphia, and not the airline, owned both the shuttle bus and the employee parking lot.

With the decision, the Court stood by its earlier Epler holding that the phrase “the employer’s premises” should be construed liberally to include any area that is integral to the employer’s business operations, including any reasonable means of ingress to or egress from the workplace.

Employee of staffing agency cannot sue borrowing employer – Pennsylvania

In Burrell v. Streamlight, an employee of a staffing agency fell while assigned to Streamlight, received comp benefits from the staffing agency, and filed a negligence suit against Streamlight. Streamlight argued it was acting as his employer at the time and, therefore, was immune from civil liability.

The appellate court stressed that the issue turned upon whether the borrowing employer had the right to control not only the work to be done by the borrowed employee but the manner of performing it. It found the evidence established that Streamlight was his employer.

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OSHA watch

Few changes in Fall 2019 regulatory agenda

The Department of Labor’s regulatory agenda, released Nov. 20, has few changes from the Spring agenda.

Final rule stage

Added to the final rule stage is Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work, which stems from a September 2014 settlement between OSHA and the Association of American Railroads. The other three in the final rule stage are carryovers from the spring:

  • Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records
  • Technical Corrections to 27 OSHA Standards and Regulations
  • Exposure to Beryllium to Review General Industry Provisions

Proposed rules

A rule on communication tower safety has moved to the proposed rule stage from the pre-rule stage. A pair of regulations has been added to the list of standards in the proposed rule stage. An NPRM of an update to the Safety Standard for Powered Industrial Trucks standard, which presently is based on ANSI’s 1969 safety standard, could be issued as early as January. Also, an NPRM clarifying regulatory language in the 2016 final rule on walking-working surfaces is expected by April.

BLS data may shed a light on future enforcement priorities

BLS recently released the injury and illness data for 2018. While injury and illness rates remained the same as in 2017, some industries had increases. The retail trade industry saw an increase in its total recordable rate from 3.3 in 2017 to 3.5 in 2018. Similarly, the agriculture, forestry, fishing and hunting industry saw its rate increase from 5.0 to 5.3.

The data drills down further to subsections. The highest subsector rates were pet care services at 11.4, veterinary services at 10.4, steel foundries at 10.2, and skiing facilities at 10.

Preventing cold stress and injuries from other winter hazards

Two resources are available:

Revised webpage on radiation safety

The revised webpage provides information on how to recognize and control ionizing radiation hazards.

New bulletin on shipyard hazards

A new Temporary Worker Bulletin focuses on shipyard safety.

Offshore renewable energy facilities responsibility of Department of Interior

The Department of the Interior will oversee workplace safety and health at offshore renewable energy facilities on the Outer Continental Shelf, according to a policy statement published in the Oct. 18 Federal Register.

Recent fines and awards

Massachusetts

  • The Connecticut Department of Labor cited Whitmore Poultry, based in Orange, for more than 500 violations of misclassifying employees as independent contractors and fined the company $90,000. The violations represented each worker for each week they performed work.

Missouri

  • Blue Nile Contractors Inc., based in Birmingham, was cited for failing to protect employees from trench collapse and electrical hazards. The company faces $210,037 in penalties.

New York

  • In Secretary of Labor v. Casale Construction Services Inc., an administrative law judge of the Occupational Safety and Health Review Commission rejected the construction company’s contention that its repeat safety citations should be vacated on the basis they were due to employee misconduct. Two citations carrying penalties of nearly $25,000 were upheld.

Pennsylvania

  • The Connecticut Department of Labor cited Five Brothers 1, based in Sunbury, for more than 600 violations of misclassifying employees as independent contractors and fined the company $180,600. The violations represented each worker for each week they performed work for Five Brothers 1. The company was also cited for failing to maintain workers’ compensation.

For additional information.

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

OSHA reiterates that online safety training may not meet requirements

In a standard interpretation issued earlier this year, OSHA answered the question:

Are online training programs acceptable for compliance with OSHA’s worker training requirements?

Interestingly, this standard interpretation is very similar in wording to one issued 25 years ago. While the agency acknowledges that online training is a useful component of an overall training program, it alone is not compliant. To be compliant, it must have an interactive component: employees must be able to ask questions of, and receive responses from, a qualified trainer in a timely manner. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” according to the document.

OSHA noted that one way for the employer to give workers this opportunity in the context of computer-based training is to provide a telephone “hotline” so that employees will have direct access to a qualified trainer at the time they are taking the online training. But even that is not considered optimum by the agency in regard to certain kinds of training.

“Equally important is the provision of sufficient hands-on training because it allows an employee to interact with equipment and tools in the presence of a qualified trainer, allows the employee to learn or refresh their skills through experience, and allows the trainer to assess whether the trainees have mastered the proper techniques.” Supplementing online training with hands-on training, such as how to use a tool or don PPE, is critical.

The agency also addressed the use of safety training videos and their policy is essentially the same as that for computer-based training. OSHA urges employers not to relying solely on generic, “packaged” training programs in meeting their training requirements as site-specific elements should be included, and to the extent possible the training should be tailored to employees’ assigned duties. They also emphasized that if videos are used, an interactive component must be provided that allows the opportunity for employees to ask questions of the trainer.

It also emphasized that employers must review specific OSHA standards and related guidance to determine what is required in specific situations.

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Seven reasons to stay strategic in a Insurance Soft Market

Some businesses are experiencing an unpleasant shock when renewing their commercial insurance. Market conditions for many commercial lines are changing from a “soft” to a “hard” market, where premiums increase and underwriting requirements tighten. Fortunately, workers’ compensation is a notable exception.

A “soft” insurance market can give a false sense of reality and some companies relax their focus on managing risk and losses. Yet, maintaining an accurate accounting of your performance is critical in both a soft and hard market. This ensures your company is less vulnerable to the inevitable cycles that occur in all lines of insurance.

Here are seven reasons to keep your eye on strategy:

  1. The company’s risk profile is key regardless of market conditions and has implications across all business categories. Given the availability of big data today, the workers’ compensation premium is based on more than payroll and the Experience Mod. What’s critical is the insurance’s company perception of your risk. Importantly, the totality of your risk is relevant. For example, how you select drivers and conduct fleet safety affects both auto insurance and workers’ comp.

    Many factors go into the assessment of risk. The insurance company expects your risk management to be an ongoing process. It’s important to know the granular details of claims and what was done post-incident, so an informed conversation can take place when questions arise. A strong partnership with a broker who understands your business is essential to long-term cost control.

    Your safety strategy should be an integral part of your business strategy, not a standalone that can be put on the back burner when working well. It’s not a set of tactics, it’s what the company does, a shared vision and the plan to achieve safety excellence. When leadership loses its focus, the Workers’ Compensation program is without a compass and ultimately will flounder.

  2. Insurance rates are cyclical. While there are many positive trends impacting workers’ comp, including controlling opioids prescriptions, safer workplaces, and benign medical inflation that may keep rates low, there are some hovering clouds. For only the second time since 2003, the rate of nonfatal workplace injuries did not decrease, but held steady in 2018 according to the BLS. With relaxing ACA participation requirements, the rate of medically uninsured ticked higher in 2018, which could impact workers’ comp. The implications of medical marijuana and recreational marijuana on incident rates are troubling, Medicare Set-Asides can be complicated and unpredictable, and medical advances and longer lives have dramatically driven up the costs of catastrophic claims.

    Further, if insurers need to make up for losses in other commercial lines, they can look to Workers’ Compensation.

  3. Some industries are more vulnerable than others, including temporary staffing organizations, transportation, and retail. The BLS report spotlighted injury trends for the retail industry, where the rate of nonfatal workplace injuries increased from 3.3 per 100 workers in 2017 to 3.5 per 100 last year. Cases with days away from work also increased in retail, from 1 to 1.1 per 100 workers from 2017 to 2018.
  4. Seemingly minor missteps, such as delays in reporting or treatment, can escalate costs or lead to litigation. According to a study by the Hartford Financial Service Group, claims reported 7-14 days after the injury cost 18 percent more than those filed within a week of the injury. Wait 15-28 days and the costs jump 30 percent. Delaying medical treatment by even one day increases OSHA recordability by 60 percent.
  5. A lack of vigilance leads to a failure to identify potential high-cost claims early. The more information an adjuster has, the more efficiently a claim can be managed. Information on job description, co-morbidities, recovery at work options, prior workers’ comp claims, workplace disputes, and so on, are critical for expediting the process. Ignoring an employee who has multiple small injuries is a lost time injury waiting to happen. And failure to settle legacy claims means less scrutiny of the costs that are driving the claim. All are red flags to insurance companies about risk exposure.
  6. Insurance companies make mistakes. Payroll errors, incorrect Experience Modifiers, classification errors, over or under reserving claims, and failure to report subrogation recovery are just some of the common mistakes that lead to overcharging.
  7. The gig economy and classification of independent contractors is a hot legislative issue. California’s AB5, which goes into effect Jan. 1, 2020, changes the criteria used to classify employees and independent contractors, making it more difficult to classify an employee as an independent contractor. While this is a state law, California is often considered the bellwether for workplace protection laws. Labor groups and lawmakers will be watching closely to see how this evolves. In fact, in New York, a similar bill was introduced in the Senate in November.

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