Understanding OSHA’s general duty clause

Often referred to as the general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires that employers provide “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm…” It’s only used where there is no standard for a particular hazard and citations must be serious and/or willful violations. The citation is for the hazard, not for a particular incident or lack of a particular abatement method.

2003 OSHA Letter of Interpretation clarified the elements necessary to prove a violation of the General Duty Clause:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
  • The hazard was recognized (a recognized hazard exists if the hazard is recognized either by the employer or by the employer’s industry)
  • The hazard was causing or was likely to cause death or serious physical harm (Establishing whether a hazard is serious is similar to how OSHA classifies a serious violation for its standards, the Field Operations Manual states)
  • There was a feasible and useful method to correct the hazard

While this criteria can make it difficult for OSHA to prove a violation, OSHA’s use of the clause has expanded over the years and many are concerned about its use as an enforcement mechanism and the confusion it creates for employers. Increasingly it’s been applied to ergonomic, heat-related, and workplace violence hazards. Two recent cases have tested the use of the clause:

Heat-related hazards

Secretary of Labor v. A.H. Sturgill Roofing Inc., was a closely watched case in which serious citations were issued against the company for not adequately implementing a heat illness prevention program and not providing adequate training to employees on heat related hazards. A temporary employee who had various pre-existing medical conditions experienced heat stroke and died three weeks later from complications.

His responsibility was to stand near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing material that he then pushed off the roof into a dumpster. The foreman encouraged all employees to utilize the access to ice, water, rest and shade, without fear of reprisal. By late morning, the temperature rose to about 82°F with 51% relative humidity.

The citations had a negative effect on the employer’s bidding opportunities and it appealed the decision. An administrative law judge affirmed the citations, but the Occupational Safety and Health Review Commission (OSHRC) vacated the citations against the commercial roofing company. In so doing, it noted that the citations did not meet two of the required elements – the existence of a hazard and a feasible means of abatement. OSHA had defined the hazard as “excessive heat” but, according to the commission, to constitute a cognizable hazard under the clause, a worksite condition must pose more than the mere possibility of harm. The conditions at the jobsite were not such that they would put a reasonable employer on notice.

While employer representatives welcomed the decision, experts caution that the decision turned on a very specific set of facts and the commission did not state that the clause could never be used to cite employers for such hazards. The possibility of an OSHA appeal exists.

Workplace violence

In Secretary of Labor v. Integra Health Management Inc., a 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill was hired by Integra, a Maryland-based company, and assigned to a client with schizophrenia. Integra employs service coordinators to help its clients, who are identified by health insurers as not receiving appropriate care for chronic medical conditions including mental illness. It provides training in various manners, but employees are not clinically trained.

Unbeknownst to Integra and the referring health insurer, the client had a prior criminal record, including aggravated battery and assault. He attacked the employee with a knife, stabbing her nine times and killing her. In the Integra case, the commission was asked for the first time to decide whether workplace violence is a recognized hazard that the employer must remove from its workplace, according to the decision.

The administrative law judge affirmed an OSHA citation issued to Integra alleging a violation of the general duty clause for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.” The OSHRC affirmed, noting a direct nexus between the work being performed by Integra’s employees and the alleged risk of workplace violence and feasible measures to abate the hazard as recommended by OSHA.

While affirming the citation, the Commission expressed concern about OSHA’s use of the general duty clause to address workplace violence risks. Chairwoman Heather MacDougall, who recently resigned, noted, “My hope is that this precedent will be revisited in a future decision and, even better, that OSHA will continue in its effort to promulgate a standard that addresses workplace violence.”

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

Occupational health and safety risks now top cost disruptor

Employers looking to boost the bottom line would be smart to closely examine the costs of their health and safety incidents. While high-profile disruptions such as cyber-attacks, IT outages, or extreme weather get more attention, health and safety incidents are the leading financial loss drivers for businesses around the globe, according to the BCI 2019 Horizon Scan. The eighth report in the series analyzes the risks and threats recognized by 569 organizations worldwide, comparing them against the impact of actual disruptions in the past year.

Employers perceive occupational and health issues to be low risk (ranking #12) in the coming 12 months; yet, it was the most frequent and costliest cause of disruption in the past 12 months. It cost companies $1.1186 billion, almost four times the $307 million for IT disruptions and eight times the $144 million for cyber-attacks. Further, the report notes that there is a likely relationship between the health and safety incidents and the high costs of reputational damage.

Howard Kerr, CEO at the BSI, commented: “It’s easy for business leaders to be kept awake at night by high-profile risks such as cyber-attacks, technology disruptions and IT outages, but they must not ignore the smaller, more frequent risks that steadily erode the bottom line. Organizations that don’t take all threats they face seriously, or otherwise develop plans to manage them, are exposing themselves to not only reputational loss, but also what can become quite severe financial costs. Achieving true organizational resilience means identifying not only the big risks, but also the under-rated issues that may just seem like ‘business as usual’ and can easily be missed.”

This disconnect can stem from a failure to understand the true costs of injuries, general acceptance of injury rates as a cost of business, an unfounded belief that there is a trade-off between profits and measures to keep the workplace safe, other priorities, and so on. While many executives give lip service to “safety pays” and the value of caring for their employees, they also feel the pressures to increase profits by cutting costs. Yet, safety and profitability can coexist.

Culture comes from the top down and management commitment is the key performance indicator. Executives may believe that the mantra “we want you to go home safe each day” reflects the company’s culture but it is often viewed skeptically as drivel by employees, who feel that production trumps safety. It takes a lot more than words to demonstrate a real commitment to safety.

Management commitment to safety includes financial investment, amount of time and team members involved, technologically advanced tools such as wearables, training hours, capital projects for high-risk issues and so on. Committed leaders are familiar with the major risks and risk mitigation efforts in their facilities.

Successful executives often require a report on every serious injury and review it with the leadership team. This sends the message to mid-management that safety is an integral part of operations. They also develop a set of leading indicators that encourage a continual focus on risk reduction.

The BCI report illustrates that the cost of injuries slowly erodes the bottom line, but falls under the radar. Workers’ Comp is just the tip of the iceberg when it comes to the cost of an injury. There are many indirect costs such as lost productivity, hiring and training replacement employees, higher overtime, incident investigation, repairing damaged equipment or property, lower morale, and implementation of corrective measures. There also can be legal and administrative expenses and higher Workers’ Comp premiums for at least three years.

The National Safety Council provides helpful information on the ROI of safety at an aggregate level. But employers can take a deep dive and analyze the costs associated with two or three injuries in their organization. It’s worth the effort to quantify all the related figures. The results not only paint a clear picture of the economic value of improving safety to top management, but also help employees understand the costs come out of profits and affects their wages, bonuses, and benefits.

Unless there is a catastrophic event, health and safety incidents do not have the immediate, malicious impact that an IT disruption or cyber-attack can create. But they are highly costly and disruptive and will slowly erode the bottom line. Failure to recognize that this is not “business as usual” will have serious consequences for the longevity and resiliency of the company.

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

Things you should know

Studies:

Do higher deductibles in group health plans increase injured workers’ propensity to file for workers’ compensation? – Workers Compensation Research Institute (WCRI)

Finding: Injured workers are more inclined to seek workers comp coverage to avoid out-of-pocket health expenses when “facing a substantial financial burden” of group health deductibles.

Workers’ Compensation and Prescription Drugs – NCCI

Finding: Prescription drug prices continue to increase, but there is lower utilization.

State Policies on Treatment Guidelines and Utilization Management: A National Inventory – WCRI

Finding: There are vast differences in states’ workers’ compensation treatment guidelines and how those guidelines are enforced.

California Workers’ Comp Prescription Drug Utilization and Payment Distributions, 2009-2018: Part 1 – California Workers’ Compensation Institute (CWCI)

Finding: NSAIDs overtake opioids as the top workers’ comp drug group; dermatologicals are most costly.

Characterization of occupational exposures to respirable silica and dust in demolition, crushing, and chipping activities

Finding: Certain job tasks may expose construction workers to silica dust at levels more than 10 times the permissible exposure limit set by OSHA.

Antineoplastic drug administration by pregnant and nonpregnant nurses: an exploration of the use of protective gloves and gowns

Finding: Nearly 40 percent of pregnant nurses don’t wear protective gowns when administering powerful cancer drugs, putting their own health and that of their unborn babies at risk.

Workplace bullying and workplace violence as risk factors for cardiovascular disease: a multi-cohort study

Finding: The effect of bullying and violence on the incidence of cardiovascular disease in the general population is comparable to other risk factors such as diabetes and alcohol drinking.

Compounded topical pain creams to treat localized chronic pain: a randomized controlled trial

Finding: Topical creams were not effective in reducing pain in a study of 399 pain patients at Walter Reed National Military Medical Center.

NIOSH updates Sound Level Meter app

NIOSH has released an updated version of its free Sound Level meter app, designed to measure noise exposure in the workplace. It is available from the Apple App Store.

NIOSH releases software tool for hazard recognition training in mines

This new training tool is a beta release developed by NIOSH’s Mining Program. It is a PC-based software application that allows both novice and experienced miners to test their examination skills in a simulated, interactive environment with more than 30 panoramic photos from a real surface limestone mine, or with uploaded images taken by smartphones or digital cameras in their own mine in any sector.

Download a beta version of the EXAMiner software.

American Society of Safety Professionals issues guidance on workplace violence

The document, “How to Develop and Implement an Active Shooter/Armed Assailant Plan,” contains recommendations from more than 30 safety experts on how businesses can better protect themselves ahead of such incidents. There is a related free video and infographic.

NSC publishes Managing Fatigue

Managing Fatigue, gives employers specific, actionable guidance on implementing an effective fatigue risk management system.

NSC releases The State of Safety

The State of Safety assesses states’ safety efforts by examining laws, policies and regulations around issues that lead to the most preventable deaths and injuries. In addition to receiving an overall grade, states earned grades in three different sections:

  • Road Safety
  • Workplace Safety
  • Home & Community Safety

NIOSH publishes new skin-hazard profiles for five chemicals

The new profiles are:

  • Atrazine
  • Catechol
  • Chlorinated camphere
  • Pentachlorophenol
  • Sodium fluoroacetate

State News

California

  • The Division of Workers’ Compensation has given medical providers who treat injured California workers free online access to the state’s drug formulary and treatment guidelines.

Michigan

  • The Workers’ Compensation Agency has published its Health Care Services Rules and Fee Schedule, which took effect on Jan. 8. It includes a new definition and rule language regarding telemedicine services. The health care services rules and fee schedule may be found here, on page 238. More information

North Carolina

  • Rules approved by the North Carolina Industrial Commission regarding workers’ comp settlement agreements, which were effective January 1, were published in the North Carolina Register on page 1583.

Pennsylvania

  • Some 15 insurance carriers, including Pennsylvania’s largest workers’ compensation writer, have now agreed to retroactively cut rates, part of a do-over requested after a data-reporting error led to higher premiums last year.

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

Legal Corner

ADA 
Court clarifies ADA website accessibility obligations

When the ADA was enacted, Congress did not anticipate the role of the Internet and focused on physical access barriers. Title III does not provide guidance for the Internet or web-based and mobile applications, but it does not limit coverage to brick-and mortar locations or exclude online locations. As a result, there have been a number of lawsuits and the decisions are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces.

For the first time, a U.S. Court of Appeals has ruled on this issue in Robles v. Domino’s Pizza. The Ninth Circuit held that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impedes access to the goods and services of its physical pizza franchises, which are places of public accommodation.

Critical to the decision was the nexus between Domino’s website and app and physical restaurants. While technically this ruling only applies to states covered by the Ninth Circuit, it reflects a nationwide trend and the DOJ’s position that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards, the Web Content Accessibility Guidelines (“WCAG”), developed by the World Wide Web Consortium.

Workers’ Compensation 
Timeliness of denial of benefits clarified – Florida

Florida statutes allow an employer to pay benefits to a worker while investigating his claim, for up to 120 days. An employer waives the right to deny compensability unless it can establish material facts that it could not have discovered through reasonable investigation within the 120-day period.

In Rente v. Orange County BOCC, the employer issued a notice of denial eight months after the injury. A judge allowed the denial, finding the injured worker had made misstatements to the spine surgeon about his prior symptoms and treatment to his low back, which was the proximate cause of delay in the employer’s decision to contest his claim. However, the 1st District Court of Appeals reversed and remanded, noting the judge needed to make a determination of when the employer had material facts regarding the issue of causation and compensability, which would trigger the employer’s 120-day period to commence an investigation and either accept or deny his claim.

Workers’ comp settlement does not bar recovery in tort suit – Illinois

In Armstead v. Nat’l Freight, Inc., a semi-truck driver for a Pennsylvania corporation sustained injuries in a vehicular accident with a National Freight truck in Grundy County. The Pennsylvania work comp settlement described his injury as a knee strain and noted its terms did not bar subsequent third-party action against various defendants for injuries he alleged he sustained to his back and shoulder.

He also sued National Freight and the driver, but they argued he could not present evidence of injuries other than to his knee, since the settlement said that it was his only injury. An appellate court reversed the circuit court’s grant of partial summary judgment and remanded for further proceeding, noting a statement could not be considered a judicial admission when it was made in the course of another proceeding and could not be used to bar his tort claim.

No extra benefits for worker who did not seek job rehab services – Illinois

In Euclid Beverage v. The Illinois Workers’ Compensation Commission et al., a long-term worker in the beverage distribution industry injured his back and was terminated because he could not be accommodated on light duty. He received temporary total disability, maintenance, and permanent partial disability benefits.

Shortly after his termination, he was offered a job that did not rely on physical ability, but he declined to interview. A few years later, the employer filed for review and the Circuit Court overturned the award for maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search.” State law only mandates that an employer pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.

Worker must show disability made it impossible to secure work – New York

In Matter of Figueroa v Consolidated Edison Co. of N.Y., Inc, an office assistant who worked for approximately 41 years began to experience pain in her hands and wrists and filed a claim for workers’ compensation benefits. Shortly thereafter, she retired from her position at the age of 59.

Three years later she began efforts to reenter the job market, attending an orientation session, taking classes on preparing a résumé and cover letter to assist her in finding a job and subsequently submitting job applications to various retail companies. The employer challenged the Board’s award of benefits during the time period she had reattached to the labor market. The court agreed that she had to demonstrate her inability to obtain work was due to her causally-related disability, as opposed to her age, economic conditions or other factors. It found the Board’s decision to award claimant wage replacement benefits during the period of her labor market reattachment was not supported by substantial evidence.

Worker’s estate entitled only to portion of posthumous schedule loss of use award – New York

In Matter of Estate of Youngjohn v Berry Plastics Corp., an appellate court noted that when an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate. That rule applies even when the SLU award is posthumous.

Temporary worker cannot maintain tort suit against borrowing employer – New York

In Ferguson v. National Gypsum, a temporary worker was injured while working for National Gypsum and filed suit seeking damages. The Appellate Division’s 4th Department found the claim was barred by the exclusive remedy provision of the Workers’ Compensation Law based on the special employer concept. Since National had complete and exclusive control over the manner, details and results of the injured worker’s work, the court said the company was his special employer and enjoyed immunity from civil liability.

Family of worker killed cannot sue in civil court – North Carolina

An appeals court ruled that workers’ comp is the only recourse for a family of a mechanic crushed to death while repairing a machine at a plywood manufacturing plant. The deceased was hired by a staffing agency, but the manufacturer controlled the worker’s day-to-day work activities, controlled the work the worker performed and paid him an hourly wage. Therefore, the plywood manufacturer was the worker’s special employer and it could not be liable in a wrongful death action. – Estate of Belk v. Boise Cascade Wood Prods., L.L.C.

Superior court judges have broad discretion in review of attorney fees – North Carolina

Overturning a decision by the Court of Appeals, the Supreme Court noted that superior court judges have broad discretion to review the reasonableness of an attorney fee award provided by the state Industrial Commission. In Saunders v. ADP Totalsource Fi Xi, the court noted that under state law, the commission must approve a fee for an attorney in a workers’ compensation case. However, if the attorney disagrees with the commission’s decision, he/she can seek a review by a superior court judge.

Parent company not liable for death of subsidiary’s employee – Pennsylvania

In Grimsley v. Manitowoc Co. Inc., a worker was killed when he was pinned between two cranes. The employer, Grove U.S., LLC, was fined by OSHA and the widow received workers’ comp benefits. Later, she filed a wrongful death and survival action asserting negligence and strict liability against the parent company, Manitowoc Co., arguing the crane was owned by Manitowoc and branded with its logo.

The U.S. District Court granted summary judgment to the employer, parent company, and several other subsidiaries finding Grove was entitled to the exclusive remedy provision under the Workers’ Compensation Act and Manitowoc did not exercise significant control over Grove to establish liability.

Benefits continue for worker released to full duty – Pennsylvania

In an unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner), a worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy and had spinal fusion surgery. The medical treatment was successful, and the injured worker was released back to work, without restriction.

The employer argued that an ability to work without restrictions mandates a finding of full recovery and termination of benefits. However, the court noted, “Employer appears to conflate the diagnosis of full recovery from a work injury with a physician’s release to return to work without restrictions. While Claimant was capable of returning to work, the WCJ found she had not recovered from the effects of her work injury.” As such, the WCJ did not err in granting benefits for medical expenses with wage loss benefits suspended upon Claimant’s return to work.

No comp benefits despite failure to use on-site defibrillator – Tennessee

In Chaney v. Team Techs, the Supreme Court, reversing a decision of a state trial court, found an employer isn’t liable for workers’ compensation benefits because they failed to use an automated external defibrillator (AED) that was available to help an employee who was suffering from a non-employment related medical emergency. Although the court noted that under the state’s emergency doctrine, an employer can be liable for benefits if it failed to render reasonable medical aid to an employee who had become helpless at work, the employer had called emergency responders and the doctrine could not be extended to require an employer to utilize an AED.

The first responders were able to revive the worker who collapsed because of a heart condition, but she suffered a permanent brain injury because of a lack of oxygen to her brain and sought workers’ comp benefits. While the employee’s injury had occurred in the course of the employment injury, it did not arise out of the employment.

Subrogation lien cannot include nurse case management expenses – Tennessee

In Memphis Light, Gas and Water Division v. Watson, a case of first impression, the Court of Appeals ruled that nurse case management fees are not recoverable as part of an employer’s workers’ compensation subrogation lien. A meter reader suffered injuries when she was attacked by a dog and received workers’ compensation benefits. She also settled a tort claim for $80,000.

Since the court had never decided whether an employer’s statutory subrogation lien extends to nurse case management fees, it considered an Illinois decision in which the cost of services for a “medical rehabilitation coordinator” had been excluded from the subrogation amount.

The court concluded that such fees are not included in a lien, since the provision of case management services is not mandatory and is for the benefit of an employer, not the worker.

Requirements for workers to receive additional PPD benefits clarified by Supreme Court – Tennessee

In Batey v. Deliver This Inc., a delivery driver injured his back and underwent surgery. Under Tennessee law, when a worker reaches maximum medical improvement for a compensable injury and receives a permanent medical impairment rating, they receive an “original award” of permanent disability benefits. There are various provisions for increasing this amount if the worker does not return to work when the award ends.

A trial court determined that he was entitled to 275 more weeks of permanent partial disability benefits. Although the WCAB found errors in “defining an employee’s burden of proof” and in defining the phrase “employee’s pre-injury occupation,” it noted the errors were harmless and the Supreme Court agreed. Both the appeals court and the state Supreme Court, however, denied a motion for prejudgment interest on his claim, citing the exclusive remedy provision in the comp law.

Violation of safety rule nixes benefits – Virginia

In Jones v. Crothall Laundry, a team leader at a commercial laundry entered a fenced area through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence. An appellate court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits. The employer had proved the rule was reasonable, for the benefit of the employee, that it was known, the employee intentionally breached the rule, and the breach was the cause of his injury.

Injured worker who was left quadriplegic ineligible for benefits – Virginia

The Supreme Court affirmed an earlier ruling that denied workers’ compensation benefits to a worker injured while rehabbing a historic school building, finding the man was hired by an unlicensed contractor and was not an employee of the church and historical society that were restoring the building.

The court noted that the statute holds a party liable for the payment of workers’ compensation benefits if it has hired another to perform work that is “a part of his trade, business or occupation.” While the historical society was formed to restore the school, the court reasoned that “its trade, business or occupation did not include the complete reconstruction of the building.”

Court reverses denial of benefits to employee assaulted by coworker – Virginia

In King v. DTH Contract Services Inc., the Workers Compensation Commission denied an employee’s workers’ compensation claims for injuries he sustained when he was stabbed at work by a former co-worker, finding that the motive of the attack was relevant in determining if the injury arose out of employment. The employee worked as an overnight rest area attendant and a former employee stabbed him in the eyes with a screwdriver when he was on his way back to the office after a safety check. The assailant committed suicide and the motive was never determined.

Upon appeal, the worker argued his employment placed him at a greater risk of assault than the risk faced by the general public. The court remanded the case back to the Commission, noting other cases in the state have found that when an assailant’s motive is unknown, an injured worker does not have to affirmatively establish that the assailant’s motive was not personal. Further, it was an error to treat the motive as the only relevant issue.

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

OSHA watch

“Good-faith” employers get grace period to comply on crane operator documentation requirements

The requirement that employers must evaluate their operators before allowing them to operate cranes independently is being enforced, but employers making good-faith efforts to comply have a 60-day grace period, according to the enforcement guidance effective on Feb. 7. Employers who have evaluated operators in accordance with the final rule, and are making good-faith efforts to comply with the new documentation requirement are offered compliance assistance, in lieu of enforcement. The grace period ends April 15.

New bulletin for workers wearing devices containing lithium batteries

A new Safety and Health Information Bulletin warns employers and workers of potential fire and explosion hazards stemming from lithium batteries used to power small or wearable electronic devices.

New video on ammonium nitrate emphasis program

A new YouTube video deals with inspections under the ammonium nitrate emphasis program.

Employers urged to prevent worker exposure to carbon monoxide

Employers are reminded to take necessary precautions to protect workers from the potentially fatal effects of carbon monoxide exposure. To reduce the risk of exposure, employers should install an effective ventilation system, use carbon monoxide detectors, and take other precautions as described in the Carbon Monoxide Fact Sheet.

Other resources include videos (in English and Spanish), QuickCards (English) (Spanish)and a fact sheet on portable generator safety.

Alert to Nebraska employers: Increase in amputation injuries

A review of Nebraska workers’ compensation claims found 42 employees suffered amputation injuries in 2018, and employers failed to report more than 65 percent of those injuries within 24-hours, as required. The National Emphasis Program for Amputations targets inspections at workplaces with machinery and equipment that cause, or are capable of causing, amputations. Information and resources are available to help employers identify and eliminate workplace hazard.

Enforcement notes

California

  • Solus Industrial Innovations, a plastics manufacturing plant in Rancho Santa Margarita was cited for willfully, knowingly and intentionally maintaining an unsafe and hazardous work environment after two workers were killed in an explosion caused by a water heater that was never intended for commercial use. The case was referred to the local district attorney’s office and a $1.6 million judgment was obtained in a civil case.
  • Platinum Pipeline Inc., based in Livermore, received a $242,600 fine after a worker died when a trench built for a storm drain project collapsed.
  • A joint venture of Shimmick Construction Co. Inc., of Oakland and San Francisco-based Con-Quest Contractors Inc. faces a $65,300 fine after a worker was fatally struck by a steel beam in 2018 while working on a light rail tunnel project in San Francisco.

Connecticut

  • The U.S. District Court for the District of Connecticut ordered Eastern Awning Systems Inc., a manufacturer of retractable fabric patio awnings based in Watertown, and its owner Stephen P. Lukos to pay a total of $160,000 to two discharged employees who filed safety and health complaints. The judgment also requires the employer to provide neutral letters of reference for the two discharged employees, and to post the judgment and notice of employees’ rights prominently at the workplace.

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, Crown Roofing LLC was cited for exposing employees to fall hazards at two separate residential worksites in Port St. Lucie and Naples. The Sarasota-based contractor faces penalties of $265,196. It has been inspected 17 times in the past five years and 11 inspections have resulted in repeat violations.
  • OSHRC affirmed two serious violations, and reinstated one stemming from an inspection of gas line work – overturning an administrative law judge’s decision – and increased the fine from $5,500 to $9,000 against Dade City-based Florida Gas Contractors Inc.

Georgia

  • Hilti Inc., a hardware merchant wholesaler, was cited for exposing employees to struck-by hazards after an employee was injured while operating a forklift at a distribution center in Atlanta. The Plano, Texas-based company faces penalties of $164,802.
  • Eye Productions Inc., a motion picture company, was cited for failing to provide adequate head protection during stunts while filming the “MacGyver” show in Chattahoochee Hills. Proposed penalties total $9,472.

Massachusetts

  • In Secretary of Labor v. HRI Hospital Inc. d/b/a Arbour-HRI Hospital, an administrative law judge vacated a citation that HRI Hospital Inc., based in Brookline, failed to adequately protect its employees from being physically assaulted by patients.

Minnesota

  • In Secretary of Labor v. SJ Louis Construction of Texas Ltd. (a division of SJ Louis Construction Inc., of Rockville, Minnesota), the ALJ determined that SJ Louis, an underground utilities contractor, failed to construct a trench in Cypress, Texas, in compliance with regulations and failed to provide employees proper egress. A penalty of $36,000 was assessed.

Pennsylvania

  • U.S. District Court for the Eastern District has entered a consent judgment ordering Blown Away Dry Bar and Salon, based in Kennett Square, to pay a $40,000 settlement to a fired hair stylist. Investigators determined the defendants retaliated against the employee when her husband reported workplace safety and health hazards to OSHA, a violation of the (OSH) Act.
  • An administrative law judge of the OSHRC affirmed a general duty clause citation against Brooke Glen Behavioral Hospital’s facility in Fort Washington for exposing its employees to workplace violence, as well as a $12,471 penalty.
  • KidsPeace Inc. was cited for exposing employees to workplace violence hazards at two behavioral and mental health facilities in Orefield. The company faces proposed penalties totaling $29,010.

Tennessee

  • Hankook Tire Company received 11 citations and faces $85,200 in penalties for failure to conduct periodic crane inspections, provide adequate personal protective equipment for workers handling hazardous chemicals, ensure that proper lockout/tagout procedures were followed, and guard machinery.

For additional information.

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

HR Tip: Bolstering recruitment efforts in 2019

Finding qualified applicants is one of the top challenges faced by employers. According to a new SilkRoad and CareerBuilder study, the problem begins with the job search process. A majority of employees believe their experience as a job candidate reflects how the company treats its people.

Among the key findings are:

  • Candidates expect proactive, transparent and frequent communications from employers.
  • The candidate experience speaks volumes about the employee experience.
  • Candidates are not willing to wait.
  • Candidates expect a fast and easy application experience.
  • Candidates keep looking for other jobs even when they accept an offer.
  • Successful onboarding for a new hire is critical for their long-term vision of culture and career potential at the new company.

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

Bike-share and motorized scooter workers’ comp risks

Electric scooters and dockless bikes are popping up everywhere. Some employers are encouraging their use by paying rental fees. Yet, the laws for operating scooters are just emerging, operation and safety information varies from company to company, and some are not properly maintained. Helmets may not be available. User agreements limit users to binding arbitration and/or disclaim liability, which can make an employer vulnerable if an employee injures others. While state legislatures are beginning to consider scooter bills, this craze is new and few regulations currently exist, so employers need to evaluate their use as part of a risk management plan and update their policies.

Although an employee’s travel time to and from work is generally not covered by workers’ comp, employers that subsidize transportation costs should be clear that such arrangements are voluntary and that the employer is released from liability for injuries or harm caused by or to employees during their commute. Also, the employee should accept financial responsibility for any injuries caused to third parties while using the commuter benefit.

If an employee uses a motorized scooter or bike for a work-related purpose, such as to and from a meeting or for a business-related errand, and is injured, a workers’ compensation claim could result. Employers may decide to prohibit all use of bike-share and scooter services during work hours. Those that wish to allow their use need to make sure that their workers’ compensation and general liability coverage cover such incidents and develop policies that employees agree to abide by.

New transportation technology is developing rapidly. Employers must be aware of what technologies their employees are using for business, ensure appropriate coverage, and set reasonable terms of use.

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

More than 60,000 employers submit data not required by OSHA

General confusion surrounding OSHA’s electronic record-keeping rule may spell trouble for some employers that voluntarily submitted data even though they are not regulated by the rule. Although the “courtesy” submissions may seem harmless, OSHA is using the data to target enforcement activities.

In a webinar, Daniel Deacon, a Washington, D.C.-based associate in Conn Maciel Carey LLP’s OSHA and labor and employment practice groups, reported that in 2017 there were 60,956 so-called out-of-scope submissions of Form 300A data, up from 52,171 in 2016. He noted confusion about the rule, misunderstanding of the thresholds for employment figures, and states that have not adopted the rule all contribute to this surprisingly high number.

According to OSHA, there is significant underreporting problem. The agency reported that more than one-third of the workplaces did not submit required reports in 2016. Under its Site Specific Targeting 2016 Program, the agency is targeting inspections of employers that should have reported, but did not. Moreover, compliance officers have been directed to review reporting records on all inspections.

March 2, 2019, was the deadline for employers to electronically report OSHA Form 300A data for calendar year 2018. The establishments covered by this requirement are specified on OSHA’s Injury Tracking Application webpage.

Other reporting challenges

Although employers are getting more comfortable with the severe injury reporting rule adopted in 2015, incidents are being reported to OSHA that should not be reported. On the other hand, OSHA has issued at least 400 citations for late reporting or failure to report.The rule requires employers report the inpatient hospitalization of a single employee as well as all amputations and loss of an eye within 24 hours.

Here are some key provisions:

  • If the injury or illness resulted in the employee’s death within 30 days of the incident, it is reportable to OSHA within eight hours of learning the outcome.
  • If the injured worker went to the hospital, was the employee formally admitted to the inpatient service of the hospital? If yes, did they receive medical treatment (more than observation or diagnostics) after admission? If yes, reportable to OSHA within 24-hours of learning the outcome.
  • Common mistakes in reporting: reporting when employee spent more than 24 hours in emergency service before being formally admitted; inpatient medical treatment was deferred for more than 24 hours; medical treatment was provided beforeadmission to the inpatient service; not reporting inpatient first aid treatment.
  • Did the injury result in a body part becoming severed from the employee’s body, either during the incident or after the incident in a medical amputation? If yes, did the amputation occur within 24-hours of the work-related incident? If yes, report to OSHA within 24 hours of learning of the outcome.
  • Did the injury result in loss of an eye? If yes, report to OSHA within 24-hours of learning of the outcome. Note: this does not include loss of eyesight.

Other common issues are reporting injuries that are not work related, misunderstanding when the 24-hour timeclock begins, and responding inappropriately to a rapid response letter by blaming the employee for the incident or not offering corrective actions.

The challenges of keeping up with OSHA’s rules and regulations are enormous. While it’s critical to strictly adhere to OSHA requirements, providing unnecessary information or not reporting when you should can lead to something you don’t want…an inspection. If you need help, contact us.

You can also learn more about OSHA Recordkeeping, and benchmarking your injury results at http://www.premiumreductioncenter.com/osha-incident.html, as well  access to FREE OSHA 300 Log recordkeeping software.

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

The daunting challenge of maintaining a drug-free workplace

With a national opioid crisis that defies holistic solutions, the legalization of medicinal marijuana in more than 30 states and recreational marijuana in 10 states, increases in deadly overdoses in the workplace, changing state laws, confusion over OSHA’s anti-retaliatory drug testing rule, and concerns about medical privacy, no employer should think they are immune to the problem. In fact, according to the National Safety Council (NSC), 15.6% of American workers live with a substance disorder and The Hartford reports that 64% of HR professionals are ill-prepared to help a worker with an opioid addiction.

These factors, coupled with a tight labor market and low unemployment, have led some employers to soften zero-tolerance policies for jobs where safety is not critical and there is a low risk of injury or error. The decision to relax zero-tolerance policies requires buy-in from company leadership and supervisors as well as serious evaluation of the consequences. Although the legalization of marijuana exponentially increases the complexity of the issue, the reasons for maintaining a drug-free workplace remain constant: safety of employees and customers, lower absenteeism, reduced turnover, fewer workers’ comp claims, fewer workplace conflicts, and reduced liability for workplace accidents.

It’s also troublesome for supervisors because substance abuse often falls below the radar of the workplace. Yet, for five consecutive years, unintentional workplace overdose deaths have increased by at least 25%. Drug testing, which is often a critical component of a zero-tolerance policy, can identify those at risk.

Here are five things to consider when evaluating a drug policy:

Legal concerns

While federal law regulating drug testing affects some heavily-regulated industries, there is no comprehensive federal law regulating drug testing in the private sector. The Drug-Free Workplace Act of 1988 requires all recipients of federal grants and some federal contractors to maintain a drug-free workplace.The ADA does not consider drug abuse a disability and allows drug testing; however, disability discrimination is a significant legal risk. If an applicant is not hired or an employee is terminated because of a positive drug test and the medication was legally prescribed for a disability, the employer could be liable. Reasonable accommodations must be provided at application, hiring, and during employment.

State laws that do regulate workplace drug testing vary widely and are constantly changing. Generally, state laws allow employers to drug test job applicants. However, many have rules about providing notice, preventing discrimination, and following procedures to prevent inaccurate samples. The laws governing testing of current employees varies widely by state, with some prohibiting random testing and others requiring ‘reasonable suspicion.’ There are also laws governing post-accident testing. It’s critical to understand and stay abreast of the laws in all the states in which you operate.

Marijuana

Marijuana is one of employers’ biggest worries and one of the driving reasons for employers to relax pre-employment drug testing. There is legitimate fear that it will reduce the pool of qualified candidates. Some address this issue by removing marijuana from the test panel for many positions that are not safety-critical.

The laws vary significantly with states that have legalized marijuana and case law is limited and evolving. Some states have card holder anti-discrimination statutes and some states prohibit firing of an employee who tests positive for marijuana while others allow it. Although all marijuana use is still illegal under federal law, state courts across the country are deciding cases on medical marijuana use and accommodation. Employers are wise to consider whether positive drug tests are connected to medicinal use before making employment decisions.

Employers should be careful about penalizing employees for off-duty marijuana use, since some states have statutes protecting employees. However, most states permit employers to prohibit marijuana use on their premises and to discipline employees who come to work under the influence.

While the uncertainty is unnerving for employers, a growing number of states are writing statutes to remove the ambiguities. Statutes in Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, Washington DC, and West Virginia address employment protection for medical marijuana patients. It’s still possible to restrict marijuana use in these states, but care needs to be taken in crafting and enforcing a policy.

If you choose to differentiate marijuana policies from other drug policies, consider these questions:

  • Will treating marijuana differently create problems in the workforce?
  • Under what circumstances will employees be tested for marijuana?
  • What are the consequences of not testing (i.e. more injuries, absenteeism)?
  • What is the process to determine a medical exception to the policy?
  • What happens when an employee fails the test?

Workers’ Comp

Substance abuse can contribute to workplace accidents and a drug-free workplace helps prevent accidents, thus lowering workers’ comp costs. In some states, employers implementing a drug-free workplace receive a premium discount. As of October 2018, 13 states had such laws. While the requirements and discounts vary, the states include Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Mississippi, Ohio, New York, South Carolina, Tennessee, Virginia, and Wyoming.

In addition, some states have enacted laws to make it easy for employers who properly drug test to deny workers’ compensation benefits. For example, Florida law provides that if the employee tests positive for drugs, then “it is presumed that the injury was occasioned primarily by…the influence of the drug upon, the employee.”

Medical marijuana raises thorny issues for employers. Can a claim be denied if an employee tests positive for using state-approved medical cannabis? Can an injured employee receive medical marijuana to treat a workplace injury? Both are new and evolving issues that will be the subject of future court cases and state regulations. The Minnesota Department of Labor & Industries issued rules allowing cannabis as a reimbursable form of medical treatment.

OSHA

The anti-retaliatory provisions of OSHA’s e-Recordkeeping rule resulted in considerable confusion about post-injury drug testing policies, which was somewhat clarified in a guidance memo in October 2018. Before doing post-accident drug testing, employers should:

  • Have a reasonable basis to conclude drug use could have contributed to the injury
  • Test all employees whose conduct could have caused an accident, even if they were not injured
  • Identify high hazard work as a reason for testing
  • Determine if the drug test can provide insight to the root cause of incident
  • Consider whether drug test is capable of measuring impairment at the time the injury occurred
  • Ensure employees are not discouraged or dissuaded from reporting injuries

Remember, the rule does not affect new hires, random testing, or testing to comply with state or federal laws or required by Workers’ Comp insurers.

Privacy

Although challenges to workplace drug testing policies on the grounds that they violate employees’ privacy have generally not been successful, the manner in which the test is conducted and how the results are used have been successfully challenged. Drug test results are considered protected health information and must be kept confidential. Further, as laws on employee privacy continue to evolve, testing that is not clearly authorized by law could be open to legal challenges.

Conclusion

Zero-tolerance policies are strong stands that send an important cultural message, but like any policy it should be evaluated periodically. How effective has it been? Has it hampered recruitment and retention efforts for positions that are not safety-critical? Has it prevented workers from seeking the help they need to deal with substance abuse? Does it impede flexibility?

Anecdotally, more employers are tailoring drug testing to the job and adding a fitness-for-duty component. Any policy changes require serious consideration as protecting employees remains the top priority. However, no change in policy should excuse an employee who is impaired while working. There’s just too much at risk.

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

Legal Corner

ADA 
More appellate court decisions support regular attendance as an essential function of most jobs

In Trautman v. Time Warner Cable Tex., LLC, (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer. While the decisions show that unreliable attendance can render an employee unqualified for his or her job, it’s not a given and rests on the facts of the case- employers need to be vigilant in their documentation and process and consistent in the treatment of all employees.

FMLA 
Employee must turn over social media posts

In Robinson v. MGM Grand Detroit, LLC, the United States District Court for the Eastern District of Michigan found that an employer does have the right to Facebook and other social media accounts when an employee sues for discrimination and violations of the FMLA. The case alleged that an employee of MGM Grand was terminated because of his race and disability and in retaliation for taking FMLA leave. In discovery, the employee refused to provide his social media posts. A federal magistrate ruled that the employee’s Facebook, Google Photo, and Google location accounts were relevant for the case and ordered the employee to turn them over for the time he was out of work.

Workers’ Compensation 
NLRB: independent contractor test overturned

The National Labor Relations Board (NLRB) has returned to a previous standard for evaluating the status of independent contractors versus employees. In the SuperShuttle DFW Inc. case, which involved shuttle-van-driver franchisees of SuperShuttle at the Dallas-Fort Worth Airport, the board concluded that the franchisees are not statutory employees under the National Labor Relations Act, but rather independent contractors excluded from the law’s coverage.

This decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Federal appeals court sends Browning-Ferris joint employer standard back to NLRB

The federal appeals court in the District of Columbia has partially upheld the Obama-era Standard in Browning-Ferris Industries of Cal., Inc. v. NLRB. The court said that it was permissible for the Board to create a standard that considered both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. However, the Board failed to articulate the scope of what it considers “indirect” control, so the issue was remanded. The impact on the Board’s rulemaking remains to be seen.

Employer not vicariously liable for a fatal car accident caused by an intoxicated employee – California

In an unpublished decision, Pryor v. Fitness International, an appellate court ruled that an employer was not vicariously liable for a fatal car accident caused by an intoxicated employee. When a supervisor determined that a membership counselor was impaired and sent him home early, the counselor’s car struck a bicyclist, who died from his injuries. The widow asserted the company was vicariously liable for the employee’s negligence because he was acting within the scope of his employment when he became intoxicated, and/or when he struck her husband. Further, they were negligent in hiring, retaining and supervising.

The court found that the employee was acting in a purely personal capacity when he became intoxicated and killed the bicyclist. The fact that he was sent home by the supervisor did not implicate the “special errand” rule under workers’ comp. Further, the company had no duty to try to prevent the collision, so it could not be held directly liable for negligence.

Job placement agency can’t be sued by worker who passed drug tests but was not offered job – Florida

In McCullough v. Nesco Res. LLC, the Eleventh Circuit Court of Appeals held that a job applicant who was required to take two drug tests (and passed) but was not offered a position cannot sue the placement agency. The Drug-Free Workplace Program Statute does not provide an aggrieved applicant with a private right of action. The Court said the “penalty” for the employer’s failure to abide by the statute was its loss of the discount in workers’ compensation premiums that it could enjoy with full compliance.

Lawsuit against employer for off-duty worker’s death can proceed – Minnesota

In Henson v. Uptown Drink, the Supreme Court ruled that a lawsuit filed against a bar after the death of an off-duty employee may proceed. The bartender and other employees, including an off-duty employee, forcibly removed two men who had become drunk and belligerent. The off-duty employee fell and hit his head on concrete, causing a traumatic brain injury that led to his death. His family sued, but the district court ruled the suit was barred by the exclusive remedy of workers’ comp.

The Court of Appeals reversed, holding that the evidence was insufficient to establish that the death arose out of and in the course of his employment. The case then proceeded under innkeeper negligence and violation of the Dram Shop Act and went through several appeals. The Supreme Court affirmed the appellate court decision, ruling in part that “a reasonable fact-finder could determine that (the patron’s) intoxication, violent outburst, and subsequent physical resistance, taken together, were the proximate cause of the fall that killed…”

Comp carriers must split death claim in spite of mistaken duplicative coverage – Missouri

In Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., a husband and wife each procured a workers’ compensation policy for a bakery they owned. An employee died in an automobile accident in the course of his employment and Employers paid the claim, but sought an equitable contribution from Hartford. When a Hartford agent told the husband after the accident that the Hartford policy was active, the husband filed a cancellation request, Hartford retroactively cancelled the policy, and issued the bakery a full refund of the premium and maintained it did not owe any contribution to Employers.

However, the Eighth Circuit found state law barred Hartford from cancelling a policy and eliminating its duty to defend and indemnify, after an insured had become liable for a workers’ compensation claim.

Nebraska resident hired in state but injured in Alaska cannot collect in state – Nebraska

A Washington seafood company recruited, drug tested, and hired prospective employees in Nebraska, but did no actual work in the state, therefore it was not an “employer” for purposes of the Workers’ Compensation Act. In Hassan v. Trident Seafoods & Liberty Mut., an appellate court held that a resident who was hired in Nebraska and later sustained work-related injuries in Alaska, receiving some workers’ compensation benefits from that state, could not maintain a workers’ compensation claim in Nebraska

Worker must sue third party in state that paid benefits – Nebraska

Drivers Management LLC, a Nebraska trucking company, contracted with Eagle KMC LLC, an Arizona company, to train employers. A truck-driver-in-training was injured and collected workers’ comp from Drivers Management. Almost two years later, she filed a personal injury suit against Eagle and other parties. Because Drivers Management had a subrogation claim against any third-party recovery, it was named as a defendant. The suit was filed in Arizona and upon appeal, the court held that Arizona laws do not apply because workers’ compensation benefits were adjudicated and paid in Nebraska, which “governs subrogation, lien, and assignment rights in this action.”

Causal link must be more than a “possibility” – New York

In Bufearon v City of Rochester Bur. of Empl. Relations, a worker was injured in a work-related auto accident and received medical treatment for his left shoulder, left hip, low back,and cervical spine. The self-insured employer accepted liability for all treatment except for the cervical spine.

While a workers’ compensation law judge found that the cervical spine injury was compensable, the Workers’ Compensation Board reversed and the appellate court agreed, noting the Board had the power to determine the causal relationship based on substantial evidence. The court found the medical testimony conflicting, and neither treating physician reviewed the employee’s medical records from his prior cervical spine surgery. Therefore, the Board’s finding the physicians’ opinions regarding causation were mere expressions of possibility and speculation was proper and the injured worker failed to prove that his cervical spine issues were causally related to his accident.

No “grave injury” nixes 3rd party claim for indemnification – New York

In Alulema v. ZEV Electrical Corp., a worker allegedly suffered a brain injury while at work, resulting in disabling cognitive and emotional symptoms and filed a tort claim against a subcontractor. The subcontractor filed a third-party complaint against the employer, seeking indemnity or contribution.

Under state law, if an employee suffers a “grave” injury, the employer may be liable to third parties for indemnification or contribution. To be classified as a grave injury, it must leave the worker unemployable “in any capacity.”

An appellate court overturned the trial court and found no grave injury. Testing did not substantiate his claims of cognitive and emotional symptoms and he was actively looking for employment and had obtained his GED.

Court dismisses worker’s claim against Trump campaign for distress – North Carolina

In Vincent Bordini v. Donald J. Trump for President Inc. and Earl Phillip, an appellate court ruled it had jurisdiction rather than a workers’ compensation court over a suit alleging a Trump 2016 presidential campaign data director pointed his gun at a co-worker causing emotional distress and other damage. The director, who possessed a concealed carry permit, allegedly took out his gun and held it against the worker’s knee with his finger on the trigger while in the car.

While the campaign contended the case should be heard as a workers’ comp claim, the court noted, “The risk of being intentionally assaulted at gunpoint by a coworker is not one which a reasonable person may have contemplated when accepting an information technology job on a presidential campaign.” Therefore, it was not preempted by workers comp law.

Nevertheless, the court found that the campaign could not be held vicariously liable because the director was an independent contractor, not an employee. He was hired through a political consulting firm, had no set work hours, and was not under a regular employment contract.

Disability commences on the work day following the injury – Pennsylvania

While neither the statute nor case law addresses when a disability commences if an injured employee is paid full wages the day of their injury, the Commonwealth Court ruled the disability commences on the work day following the injury. It noted the bureau’s interpretation states that payment is to be made “on the date the claimant is unable to continue work by reason of injury unless he is paid full wages for the day.”

In Stairs v. Workers Compensation Appeal Board, a worker was injured and taken to the hospital by ambulance and did not return to work, but received full pay for the day of the injury. The employer sent a notice of temporary compensation payable, acknowledging the worker had suffered a back injury on Friday, March 27, 2015, and stated that the 90-day period to contest his claim would run from March 30 through June 27, 2015.

Under state statute, if the employer does not file to contest within 90 days its notice of temporary compensation payable will be converted into a notice of accepting liability for the claim. On the 90th day of the disability the company filed to contest the claim, although the Bureau issued a notice of conversion the following day. The worker appealed but the commonwealth court ruled that the employer’s notice was timely filed and the notice of conversion issued by the bureau was void.

Although symptoms abated, bricklayer entitled to ongoing benefits but not penalties from employer – Pennsylvania

In Kurpiewski v. WCAB (Caretti) and Caretti v. WCAB (Kurpiewski), the Commonwealth Court found a bricklayer was entitled to ongoing benefits, although he no longer had symptoms nor did he need treatment for a skin condition arising from his long-term exposure to chromium. His chromium sensitivity prevented him from working as a bricklayer. The worker also sought penalties, based on the employer’s failure to timely accept or deny liability for his claim.

The court found the employer had violated the law by failing to acknowledge or deny the claim within 21 days. Although it filed an answer contesting his claim, it did not issue a separate notice of denial. However, the court noted not every violation requires a penalty and remanded the imposition of a penalty to the judge.

Worker awarded benefits in spite of “close question” on causation – Tennessee

In Butler v. Tennessee Municipal League Risk Management Pool, a laborer worked on installing a water line at the county landfill. Two days later he was diagnosed with invasive pulmonary aspergillosis and has not returned to work.

While he argued it was a result of working in the trench, the pool said he had developed it on his farm. Since aspergillus spores are everywhere, causation is difficult to prove. However, through the testimony of his coworkers, it was established that several workers developed respiratory ailments after installing the water line at the landfill. In addition, four doctors opined that the invasive aspergillosis was caused by a massive exposure to the aspergillus fungus while digging the trench.

In overturning the denial of benefits, the Supreme Court’s Special Workers’ Compensation Appeals Panel noted it was “strangely coincidental” all of the men fell ill with similar symptoms while working at the landfill and given the beneficent purpose of the workers’ compensation system, it found in favor of the worker.

Falling asleep at the wheel nixes benefits – Virginia

In Norris v. ETEC Mechanical Corp., a master electrician fell asleep while driving home from a job site and suffered serious injuries.The court found that the accident occurred in the course of employment, but did not arise out of his employment. The state uses the “actual risk” test to determine whether an injury arose out of employment. While he said he fell asleep because he was tired, he did not relate the drowsiness to his work.

To keep benefits, employee must be bound by release – Virginia

In Giles v. Prince George Cty. Pub. Sch, a worker suffered multiple injuries and filed several claims. Later, with the help of an attorney, she entered into a settlement agreement that included some exceptions to her treatment and prohibited further claims arising from the accident. Shortly after the settlement, she demanded benefits for her right shoulder, which was an exception in the agreement. The commission treated this as a request to review the settlement, but the worker argued she did not want a review, but wanted additional benefits. The Court of Appeals upheld the commission’s denial of benefits, noting she could not keep the benefits of her agreement and at the same time not be bound by her release.

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