Things you should know

Opioid spending down but topical medications up

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

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

Safety standard for wind turbine workers

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

White paper suggests Medicare Set Asides greatly inflate costs

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

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

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

CPWR offers skin cancer prevention tips for outdoor workers

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

Highly repetitive work in cannabis industry increases risk for musculoskeletal disorders

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

European Commission adopts new rules on pilot mental health requiring airlines

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

States bolster whistleblower protection

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

State News

California

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

Indiana

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

Pennsylvania

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

North Carolina

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

Tennessee

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

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

OSHA watch

Proposed changes to recordkeeping rule

According to a Notice of Proposed Rulemaking (NPRM), the proposed changes would rescind “the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries.” The change is proposed to protect sensitive worker information from potential disclosure under the Freedom of Information Act and to protect the privacy of employees injured on the job. Three organizations filed a suit against the U.S. Department of Labor, the Secretary of Labor and OSHA over the proposed changes.

Increase in worker fatalities gets attention in Missouri, Kansas, and Nebraska

Thirty-four worker deaths in Kansas, Missouri and Nebraska with the increase linked to falls, struck by objects and vehicles, machine hazards, grain bin engulfment, and burns have led to an educational campaign about the resources available. These include free compliance assistance for small- and medium-sized businesses, as well as each state’s free On-Site Consultation Program for employers. Also available is the agency’s Recommended Practices for Safety and Health Programs.

Consider screening workers for heat stress when index hits 85 degree

A threshold for moderate occupational heat risks starts at a heat index of 91° F, but that “might not be sufficiently protective,” according to an analysis, which suggests that when wet globe bulb temperature is unavailable, a heat index of 85° F could be used to screen for hazardous workplace environmental heat.

Free stickers on trenching safety offered

A new sticker intended to raise awareness of trenching safety reminds workers to “slope it, shore it, shield it.” The free stickers are available in English and Spanish.

Proposed rule exempting certain railroad work, machines from parts of crane standard

A proposed rule that would grant exemptions to its Cranes and Derricks in Construction Standard for work on or along railroad tracks was published in the July 19 Federal Register and comments will be accepted until September 1st.

New publications

Updated webpage on avian influenza

The updated Avian Influenza page provides information on protecting workers in egg and poultry production, veterinary facilities, pet shops, and food servicing who may be exposed to infectious birds or poultry products.

Michigan OSHA clarifies requirements for eyewashes and safety showers

MIOSHA released a new Fact Sheet, Eyewashes and Safety Showers.

Cal/OSHA publishes information on the hotel housekeeping musculoskeletal injury program

A fact sheet and poster is now available.

Enforcement notes

California (Cal OSHA)

  • Marine cargo handler, SSA Pacific Inc, was issued $205,235 in fines for six willful and serious safety violations following the investigation of a fatal forklift accident at the Port of San Diego.
  • Commerce-based Pixior, LLC, faces 11 citations and $97,430 in penalties after a worker was struck by a forklift.

Florida

  • North Florida Shipyards Inc., a shipbuilding and repair company, faces $271,061 in proposed penalties for multiple violations after an employee suffered fatal injuries at its Commodores Point facility in Jacksonville.
  • Bakery Management Corp., doing business as Bakery Corp., was cited for exposing employees to caught-in, fall, and electrical hazards. The Miami-based commercial bakery faces proposed penalties of $67,261.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Bluewater Construction Solutions Inc. was cited for exposing employees to dangerous falls at two south Florida worksites. The Melbourne-based residential framing contractor faces proposed penalties of $48,778.
  • BC Direct Corp., doing business as Robotray, a Miami-based manufacturer of bakery rack loaders, was cited for exposing employees to struck-by, electrical shock, fire, and explosion hazards and faces $42,682 in proposed penalties.

Georgia

  • Dupont Yard Inc. was cited after an employee suffered a partial hand amputation and other injuries while working on unguarded machinery in Homerville. The wooden post manufacturer faces $109,548 in proposed penalties.

Illinois

  • Cleary Pallet Sales Inc., a Genoa-based pallet manufacturer, faces proposed penalties of $216,253 after 10 employees required emergency medical treatment for carbon monoxide exposure, which was nearly 10 times the permissible exposure limit and other violations.

Michigan (Michigan OSHA)

  • Five citations and $77,600 in penalties were issued to Woods Carpentry, Inc., for exposing workers to fall hazards.

Missouri

  • Karrenbrock Excavating LLC was cited for allowing two employees to work in an unprotected trench while installing sewers. Proposed penalties are $189,221.

New York

  • Timberline Hardwood Floors LLC was cited for willful and serious violations of multiple workplace safety and health standards. The Fulton custom hardwood-flooring manufacturer faces proposed penalties totaling $182,917.

North Carolina

  • Belhaven Shipyard and Marina Inc., doing business as TowBoatUS River Forest, faces $11,640 in proposed penalties after an employee drowned when a towboat capsized while operating in a winter storm.

Wisconsin

  • Carlos Ketz, who operates as Ketz Roofing, was cited for the sixth time in the past five years for exposing employees to falls. Proposed penalties total $48,777.

For more information.

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

The forgotten question in PPE training

Even employers who have carefully researched the options, involved employees in the selection of PPE, and ensured that it is comfortable, attractive, and fits properly, still struggle to get workers to use it. Training often focuses on how to properly wear PPE, when it should be worn, the limitations, how to care for it, and how to determine if it is damaged.

Missing or generalized is the question, “Why?” A common reason PPE is not used is the employees do not think about it because they are rushed or tired or they believe it is not necessary for the task. Employees may have performed the same task for many years and have never been injured. In their mind, there is no compelling reason to use it.

Many people don’t like reading big chunks of text or listening to boring PowerPoint presentations, so you might want to rethink your training program. In this digital age, there are countless resources for case studies, visuals, and videos relating to PPE. Personal accounts from people who have suffered injuries or illness when not wearing PPE are most effective when they are relevant, concise, and compelling.

Be selective… don’t focus on fear mongering or cheesy humor that can trivialize the importance of PPE. Humor can be effective, when it fits the situation. Sending employees a periodic email or text with a visual or video is a good way to supplement regular toolbox talks on PPE and keep it top if mind.

The message should not be one of compliance but why employees shouldn’t let their guard down – how quickly accidents can happen, how wearing PPE can protect against other people’s mistakes, and how it isn’t just about them – it’s about their future, family, co-workers, friends, and even pets, etc. Make it urgent and appeal to them with compelling stories. It can also be helpful to have a bulletin board in the staff room or where workers store their PPE. Encourage people to pin pictures of family, friends, pets, or whatever motivates them to stay safe every day.

It’s important to stay focused on changing the desired behavior. If someone is not wearing PPE, they should be asked “Why?” and a dialogue begun. Ultimately, the goal is to transform PPE use into an unconscious habit.

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

OSHA watch

Limited extension of the compliance dates for Beryllium Standard

A proposed rule to extend the compliance date for “certain ancillary requirements of the general industry beryllium standard” from March 12 to Dec. 12, 2018 was published in the federal registrar.

However, the proposed extension does not delay enforcement for the following requirements in general industry:

  • Permissible exposure limits (PELS)
  • Exposure assessment
  • Respiratory protection
  • Medical surveillance
  • Medical removal protection provisions
  • Any provisions where the compliance dates in the standard take effect in 2019 and 2020

For the construction and shipyard industries, only the permissible exposure limits and short-term exposure limit are being enforced until there is additional rulemaking.

 

New fact sheet outlines whistleblower protections for workers in nuclear industry

A new “Whistleblower Protection for Nuclear Industry Workers” fact sheet outlines retaliation protection for certain employees who report potential violations of the Energy Reorganization Act or the Atomic Energy Act.

 

New webpage provides safety information on workplace chemicals

The new Occupational Chemical Database compiles information from several government agencies and organizations into one online resource. The webpage includes chemical identification and physical properties, permissible exposure limits (PELs), and sampling information. Chemicals can be searched by name or identification number, or grouped by PEL, carcinogenic level, or whether they pose an immediate threat when inhaled.

 

MIOSHA targets blight removal projects to protect workers from asbestos and other hazards

The Michigan Occupational Safety and Health Administration (MIOSHA) relaunched its state emphasis program (SEP) that increases MIOSHA presence on blight removal projects across the state to address hazards such as asbestos and lead. The SEP will be in effect through February 28, 2019.

 

Enforcement notes

California

  • California OSHA issued six citations and $48,095 in penalties to Tobin Steel Company, Inc., after a worker sustained serious injuries while operating an unguarded press brake machine. Citations include failure to: conduct and document required inspections, test and maintain power-operated presses, train workers on amputation hazards, and provide adequate machine guarding.

Florida

  • Crown Roofing LLC, based in Sarasota, faces $149,662 in proposed fines for exposing employees to fall hazards at a Jupiter worksite.
  • Inspected as part of the National Emphasis Program on Trenching and Excavation, Douglas N. Higgins Inc., a South Florida utility contractor, faces $18,659 in proposed penalties for exposing employees to cave-in and other hazards at a Naples worksite. The agency previously cited the contractor for violations in January 2017 when three employees succumbed to toxic gases while working in a manhole and again in May 2018 after a steel plate fell on and fatally injured an employee.

Georgia

  • An administrative law judge of the OSHRC reinstated a citation and a $7,000 fine against an electrical services company, Smyrna-based Action Electric Co. Inc., after a federal appellate court reversed another judge’s decision to vacate the citation. The judge noted, “An Action Electric employee died from the failure of Action Electric to properly implement (lockout/tagout) procedures for inspection of the cooling machine and counterweight components.”
  • An administrative law judge of the OSHRC affirmed Gainesville-based Prime Pak Foods Inc. safety fines and approved the Secretary of Labor’s request to dismiss the company’s contest notice because it was filed after the 15-day deadline to do so. Prime Pak “argues its neglect is excusable because it was denied advance notice of the citation and the right to have counsel served with the citation,” noted the ruling, which emphasizes that notices are sent “to employers,” per federal legislation.

Maine

  • After multiple investigations and citations, a Maine roofing contractor operating as Lessard Roofing & Siding Inc. and Lessard Brothers Construction Inc. was ordered by the U.S. Court of Appeals for the 1st Circuit to implement a comprehensive safety and training program after receiving repeated citations for exposing workers to falls. The owner, Stephen Lessard, was also ordered to produce substantial documentation that will demonstrate the extent to which he is able to pay $389,685 in outstanding fines.

Michigan

  • An OSHRC administrative law judge vacated a defense contractor’s safety citation and proposed fine after determining officials could not prove negligence in a case involving a stack of heavy boxes containing vehicle parts that fell on a worker. A warehouse employee of Sterling Heights-based General Dynamics Land Systems Inc. was seriously injured when seven crates containing 94-pound struts fell on him from a stack as he was inventorying them.

Minnesota

  • Minnesota OSHA issued eight citations and $366,150 in penalties to Gateway Building Systems, Inc., after a worker suffered a fatal fall from a grain elevator. Inspectors determined that the company failed to: ensure workers were using correct anchorage points, install proper decking and guarding over an expanded platform, and provide overhead protection for workers.

Wisconsin

  • Appleton roofing contractor Hector Hernandez was cited again after inspectors observed employees exposed to falls and other safety hazards at two Wisconsin job sites. Proposed penalties are $120,320.

For more information.

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

Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

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

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

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

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

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

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

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

Workers’ Compensation
Supreme Court defines Independent Contractors – California

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

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

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

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

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

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

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

 

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

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

Spider bite compensable – Illinois

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

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

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

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

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

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

Employer cannot be ordered to reimburse for medical marijuana – Michigan

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

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

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

Supreme Court upholds statutory benefits for Mesothelioma claims – Missouri

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

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

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

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

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

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

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

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

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

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

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

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

Smoking break injury not compensable – North Carolina

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

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


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

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

Coming and going rule nixes foreman’s benefits – Pennsylvania

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

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

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

OSHA watch

Long-awaited proposed rules to clarify crane operator requirements issued

A proposed rule was published in the May 21 Federal Register. The rule drops the requirement (which never went into effect) that operators be certified for lifting capacity. It also reinstates an employer’s duty to ensure a crane operator is qualified to control the machinery safely.

Comments are due by June 20.
Spring regulatory agenda has some surprises

Several potential standards that were moved off the Trump administration’s main regulatory agenda and placed on a long-term actions list in July 2017 are now back on to the regulatory agenda under the prerule stage, meaning the agency is considering taking action. These include standards to prevent workplace violence in the health care sector, improve emergency response and preparedness, an Update to the Hazard Communication Standard, and a tree care standard.

Also on the prerule list are potential regulations related to communication tower safety and potential revisions to the Table 1 compliance methods in the silica standard for the construction industry. The infectious disease potential rule and a standard to update regulations for process safety management and prevention of major chemical accidents remain on the long-term actions list.
Use of General Duty Clause for heat related violations under review

Use of the general duty clause to issue citations against employers for heat-related hazards prompted an uncommon invitation from the Occupational Safety and Health Review Commission to file briefs by May 14. Then the review commission scheduled rare oral arguments in two cases involving the use of the clause for June 7 – the heat stress case and one against a health care facility for a fatal workplace violence incident.
Enforcement notes

California

  • Four citations and $71,435 in penalties were issued for inadequate lighting and traffic controls to Consolidated Disposal Services LLC, after a security guard at the company’s dumpster yard in Gardena was fatally struck by a truck.
  • UMC Acquisition Corp. in Downey faces $86,615 in penalties for 11 citations after unguarded moving belts and pulleys resulted in the amputation of a worker’s fingers.

Florida

  • Premier Behavioral Health Solutions of Florida Inc. and UHS of Delaware Inc. were cited for failing to protect employees at their Bradenton facility from workplace violence. Proposed penalties are $71,137.
  • Desouza Framing Inc. was cited for exposing employees to dangerous falls at two worksites. The Jacksonville-based residential framing contractor faces penalties of $199,178 for two willful citations of failing to provide fall protection.
  • P&S Paving Inc., a Daytona Beach underground utility construction company, faces $138,927 in proposed penalties for allowing employees to work in a trench without cave-in protection, failing to train employees on trench hazards, and provide a safe means to enter and exit the trench.
  • Orlando-based SIMCOM Training Centers was ordered to reinstate a flight instructor who was terminated after he raised concerns about potential violations of Federal Aviation Administration safety regulations. The company must pay $201,882 in back wages and interest, $100,000 in compensatory damages, and reasonable attorney fees.
  • Douglas N. Higgins Inc., a South Florida utility company, was cited after an employee suffered fatal injuries when a steel plate fell on him as he installed sewer lines at a Naples Park worksite. The company faces $162,596 in proposed penalties, the maximum allowed.

Georgia

  • Oldcastle Lawn & Garden Inc. of Shadydale, a manufacturer of mulch, was cited for exposing workers to amputation, struck-by, caught-in, combustible dust, electrical, fall, fire, and noise hazards. Proposed penalties for the 36 violations are $251,108. The inspection was part of the National Emphasis Program on Amputations.

Kansas

  • Wichita roofing contractor Jose Barrientos was cited for exposing employees to falls and other safety hazards when inspectors observed roofers working without appropriate fall protection at a residential site. Proposed penalties total $191,071 for two willful and six serious violations.

New York

  • A Buffalo U-Haul facility faces $108,095 in fines after a renovation exposed their workers to asbestos and silica hazards.
  • Following a fatal fire, New Windsor-based Verla International LTD, faces proposed fines of $281,220 for failing to protect its employees from dangerous chemicals, and other hazards.

Pennsylvania

  • In response to a complaint of imminent danger, Hua Da Construction in Philadelphia was cited for exposing employees to dangerous workplace safety hazards and faces proposed penalties of $222,152 for multiple violations related to electrical, fall, and struck-by hazards.
  • In a follow-up inspection, Luzerne County employer, Midvale Paper Box Co. faces penalties of $201,212 for exposing workers to safety hazards, including lockout tagout violations, electrical hazards, and forklift training.
  • Strong Contractors Inc., based in Bensalem, faces $110,971 in penalties for exposing employees to falls and failing to provide appropriate eye protection while working at Trinity Baptist Church. The company has been cited 14 times since March 2017.

Tennessee (Tennessee OSHA)

  • Vorteq Coil Finishers LLC in Jackson was issued 12 citations and $57,750 in penalties after an unguarded pinch point resulted in the amputation of a worker’s fingers. Inspectors found that the employer failed to provide machine guarding, train workers on the control of hazardous energy and confined space hazards, and inspect cranes.

Wisconsin

  • For the second time, a Milwaukee battery manufacturer, C & D Technologies Inc., was cited for exposing employees to lead and failing to implement an effective lead management program. The company faces proposed penalties of $147,822 for two repeated and six serious violations.

For more information.

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

Top reasons for serious workplace injuries and large workers’ comp losses

Liberty Mutual Workplace Safety Index

Produced annually, the Liberty Mutual Workplace Safety Index identifies the leading causes of the most disabling non-fatal workplace injuries (resulting in six or more days of lost time) and ranks them by total Workers’ Compensation costs. The top five causes that accounted for 68.9% of the total injuries occurring in 2015 (most recent data available) were: 1) overexertion involving outside source, 2) falls to lower level, 3) falls to same level, 4) struck by object or equipment, and 5) other exertions or bodily reactions.

For the fourth consecutive year, overexertion involving outside sources topped the list, accounting for almost a quarter of the losses, at $13.7 billion per year. This event category includes injuries related to lifting, pushing, pulling, holding, carrying, or throwing objects. Rounding out the top ten are: roadway incidents involving motorized land vehicle, slip or trip without a fall, caught in or compressed by equipment or object, struck against equipment or object, and repetitive motions involving micro-tasks.

These top ten accounted for $52 billion a year in medical and lost wage costs for businesses. While the number of injuries decreased 1.5 percent, the costs increased 2.9 percent. The total cost of all disabling injuries and illnesses was nearly $60 billion per year.

Combined with your company’s worker injury data, the information can help prioritize preventive measures and training needs.

 

Safety National review of high cost claims

When one thinks about high cost workers’ comp claims, it’s natural to focus on catastrophic claims. These claims include severe burns, brain injuries, spinal cord injuries and significant amputations, which are devastating for all involved. According to Safety National’s claims data, five accident causes accounted for 86% of our catastrophic injury claims:

  • 24% – Motor Vehicle Accident
  • 24% – Fall
  • 20% – Struck By
  • 10% – Act of Crime
  • 8% – Burn

Yet, the recent review of Safety National’s large loss claims by Mark Walls, Vice President of Communications & Strategic Analysis, and Stephen Peacock, Assistant Vice President – Claims, found there were significantly more “developmental” claims that crossed the $1 million threshold, used to define “large loss.” Developmental claims are routine claims that continue to develop over time, including back, shoulder and knee injuries. In this review, they represented about two-thirds of all large-loss claims. In many cases, there were opportunities to resolve the claims before they morphed into large losses, yet failure to recognize the loss potential and intervene earlier opened a Pandora’s Box.

Multiple failed surgeries was the most-common reason for escalating costs in these claims, followed by prescription opioid medications. Both catastrophic and developmental claims have extremely long tails and can remain open for 30 years or longer. The data clearly shows that every claim warrants attention and a comprehensive claims management program is critical to preventing routine claims from morphing to large losses.

 

NCCI Annual Issues Symposium – Mega Loss in Work Comp: How Medical and Treatment Advances Affect Life Expectancy

At the recent NCCI Annual Issues Symposium, presenters lauded the incredible medical advances that have enabled seriously injured workers to survive and survive longer and addressed how to improve outcomes related to these so-called work comp megaloss claims. Dr. Michael Choo and Scott Goll from Paradigm Outcomes discussed trends in mega losses (defined as claims with total incurred greater than $1 million) that average $3.2 million an incident in medical costs alone but can have costs up toward $20 million.

An analysis of Paradigm data showed that 51 to 60-year-olds represented the highest percentage of these claims and males surpassed females for accident rates. The leading causes included vehicle accidents, being struck by an object, and fall-slip-trip injuries. Burns and infections were among the most common medical afflictions.

While some of the cost drivers reflect medical advances, such as more frequent replacement of prosthetics with more high-tech components, innovative laser treatment for scars, and long-term care programs for brain and spinal cord injuries, up-charging for certain medical treatments, adverse events following treatment such as hospital infections, and co-morbidities also drive costs.

According to Dr. Choo these factors can best be mitigated with:

  • Expertise: It takes a team to have the knowledge and skills to ensure a high-quality outcome.
  • Experience: People with experience can tell you what works and what doesn’t.
  • Embracing Outcomes: Help providers focus on outcomes rather than optimizing revenues.

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

Update: July 1 deadline for OSHA 300-A electronic data submission

Employers can now begin to electronically report their Calendar Year (CY) 2017 Form 300A data to OSHA. All covered establishments must submit the information by July 1, 2018. Remember, not all establishments are covered by this requirement. To review which establishments need to provide their 2017 data, click here.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. Employers can view their submitted CY 2016 Form 300A summary information, but they cannot edit or submit additional 2016 data on this website. According to the OSHA website, the agency is currently drafting a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule.

State Plans that have not adopted the rule

While most states have adopted the federal requirements, there are six states that have not or are delaying enforcement: California, Maryland, South Carolina, Utah, Washington, and Wyoming. On April 30, 2018 OSHA issued a press release instructing employers to submit 300A data even if they are in a state that has not adopted the rule. There has been a mixed reaction from the states, but it is generally agreed that Fed OSHA does not have any authority over State Plan employers (only State Plans) and that the remedy for delinquent State Plans is rescinding the approved state plan status, which few expect to happen.

Here is a summary of the responses:

  • California: advised employers to submit 300A data on fed OSHA’s ITA portal
  • Maryland: not requiring employers to submit
  • Minnesota: adopted regulations became effective on May 21, 2018
  • South Carolina: Legislature formally adopted Federal regulation effective May 25, 2018, but are giving employers 6 months to comply (effective date will be November 25, 2018)
  • Utah: instructed employers they may submit 300A data but are not required
  • Wyoming: issued statement confirming rule does not apply to WY employers
  • Washington: issued statement that employers are “still not required to electronically submit data”

Employers in these states may want to adopt a wait and see approach to see what course of action the state in which they operate adopts or how Fed OSHA proceeds on enforcement.

Anti-retaliation provisions

The anti-retaliation provisions of the rule, which became effective December 1, 2016, remain in effect. Essentially, this prohibits employers from discouraging workers from reporting an injury or illness. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the OSHA workplace poster. An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting, and the regulation specifically addresses internal injury reporting policies, post-injury drug testing, and safety incentive and compensation programs.

What employers should do

  • Assess whether your establishment meets the reporting criteria
  • Provide refresher training on the requirements
  • Before submitting, audit injury and illness recordkeeping forms
  • Be sure the latest version of the OSHA Rights poster is posted
  • Evaluate injury reporting policies, drug testing policies, and safety incentive and management compensation plans to ensure they do not discourage reporting of injuries
  • If in a state where the rule has not been adopted, stay abreast of both state and federal actions

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

OSHA watch

Silica safety enforcement ramped up at construction sites

Since compliance requirements took effect Sept. 23, 2017, there have been 116 alleged silica violations at companies as of April 17, a Bloomberg Environment analysis of agency records show. The number of violations in the initial six months is likely to increase since it can take up to six months after an inspection to issue citations. A common misunderstanding of Table 1 among small contractors is that using respirators is the first option. Respirators are acceptable protection, but contractors are expected to first change construction methods or tools to reduce the amount of silica that becomes airborne.

Of the 116 silica violations cited, the most frequently mentioned provision was employers failing to measure silica exposure levels (29 C.F.R. 1926.1153(d)(2)(i)). Almost as frequently cited is incorrectly following Table 1’s procedures (29 C.F.R. 1926.1153 (c)(1)), intended to reduce silica exposure. Eighty percent of the cases were classified as serious violations.

Direct final rule revising Beryllium Standard for general industry issued

While enforcement of certain provisions of the beryllium rule began on May 11, the compliance date for the beryllium standard for general industry was extended and certain ancillary provisions in the final rule changed as a result of a settlement agreement with four petitioners.

The direct final rule clarifies certain definitions and provisions for disposal/recycling, along with those that apply in cases of potential skin exposure to materials containing at least 0.1 percent beryllium by weight. The direct final rule will go into effect July 4, “unless the agency receives significant adverse comments by June 4,” according to a press release.

New flier offers steps to keep tractor trailer drivers safe at destination

Developed in concert with the trucking industry, a new flier addresses the most common hazards for drivers after they reach their destination: parking, backing up, and coupling (attaching) and uncoupling (detaching) vehicles.

List of authorized outreach trainers now available online

The website now has a searchable list of authorized Outreach trainers to assist the public in finding authorized instructors for the 10- and 30-hour Outreach classes.

Mid-Atlantic regional construction safety campaign shifts focus to falls

The four-month campaign in the Mid-Atlantic states to address the four leading causes of fatal injuries in construction will focus on falls in May. Caught-in/-between hazards is the focus in June.

Enforcement notes

California

  • Mr. Good Vape LLC of Chino, was ordered to reinstate a former manager and pay $110,000 in compensation after he was fired for claiming the company’s production of flavored liquids for e-cigarette vapor inhalers violated federal environmental law.
  • California Premier Roofscapes Inc. was cited for repeat violations of fall protection safety orders and faces proposed $134,454 in penalties.

Florida

  • An administrative law judge of the OSHRC downgraded a citation issued against Ocala-based Jody Wilson Construction Inc. from willful to serious and reduced the penalty from $49,000 to $2,800, noting the contractor had attempted to comply with the standard, albeit incorrectly.

Georgia

  • In a settlement in a whistleblower case, Jasper Contractors, headquartered in Kennesaw, but performing roofing work in Florida, agreed to pay an employee $48,000 in back wages and compensatory damages.

Massachusetts

  • In a settlement with Lynnway Auto Auction Inc., the Billerica facility agreed to correct hazards, implement significant safety measures, and pay $200,000 in penalties, following a May 2017 incident in which a sport utility vehicle fatally struck five people during an auto auction.

Michigan

  • Grand Rapids-based excavation contractor Kamphuis Pipeline Co. faces proposed penalties of $454,750 for exposing employees to trench cave-ins and other serious hazards while installing water metering pits and lines at a North Dakota municipal project.
  • RSB Construction Services LLC, in Goodrich, faces $147,000 in penalties for failing to train workers on fall hazards, and provide required guardrail, safety net, or personal fall arrest systems for workers on a pitched metal roof.

Mississippi

  • An administrative law judge of the OSHRC affirmed two items of a serious citation issued to Southern Hens after an employee’s partial thumb amputation, but vacated a third item, noting the standard is concerned with the ‘how’ of the lockout procedures, not the ‘when.’ The penalty was reduced from $19,134 to $12,000.

Nebraska

  • Contractor Premier Underground LLC was cited for failing to protect its workers from excavation collapse hazards. The company faces proposed penalties of $46,930.
  • Omaha-based plumbing contractor Gavrooden Inc., doing business as Mr. Rooter Plumbing, was cited for the second time in less than six months for failing to protect its workers from excavation collapse hazards. Proposed penalties are $38,061.

Pennsylvania

  • The OSHRC has reversed an administrative law judge’s decision to vacate a one-item serious citation with a proposed penalty of $7,000, issued against Calpine Corp. because access to the exposure was reasonably predictable.

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

The many lives of an OSHA violation

Last month in the article, Court decision: OSHA not legally bound by five-year look back for repeat violations, we discussed the number of ways a repeat violation can be harmful to employers. When there is a good faith defense, it may be well worth contesting citations, even if they are minor. Here are four more reasons to do so:

In early April, Susquehanna Supply Company, Inc., of Williamsport, Pennsylvania pleaded guilty and paid a $250,000 fine for willfully committing an OSHA violation that resulted in an employee’s death. The employee died when he was working in a trench and one of the vertical dirt walls collapsed, burying him up to his chest and crushing him against the bridge’s concrete abutment. This is a reminder that OSHA fines can have multiple lives.

The highest criminal category that can be pursued against employers for OSHA violations is a misdemeanor. However, a 2015 memorandum of understanding between the Department of Justice and OSHA put some bite into the bark of criminal charges by making prosecution available through other agencies, particularly for violations involving an employee fatality and a willful conduct.

In addition to the possibility of criminal prosecution, there is also the possibility that third parties will use an OSHA citation as evidence of negligence in companion liability cases, a worker will use the intentional tort argument in a personal injury case, or an estate may sue for wrongful death. Each state has developed its own standards through legislation and legal precedent about the use of evidence of OSHA violations and cases have met with mixed success.

In some industries, an employer’s safety record is an important factor in the competitive process for new business. It’s easy to do an establishment search on OSHA’s website or obtain the information from a safety network. Bid documents will often include a question about willful, repeat or serious OSHA citations. The goal should be to reach a resolution with OSHA that will not affect the competitive position.

Also, some states, give workers an increase in benefits if the injury is tied to an OSHA violation. Some examples are:

  • California -An employee is injured by serious and willful misconduct of the employer -award increased by 50%
  • Illinois – An employer willfully violates the state Health and Safety Act (ILCS 225) -award increased by 25%
  • Massachusetts – Employer’s serious and willful misconduct causes injury -award is doubled
  • Missouri – Failure of employer to comply with state statute or order by the Missouri Division of Workers’ Compensation -award increased by 15%
  • North Carolina – Willful failure of employer to comply with statutory requirements or order by the North Carolina Industrial Commission – award increased by 10%
  • Wisconsin – Injury caused by failure of employer to comply with any statute, rule or order of the Wisconsin Department of Workforce Development -award increased by 15%

OSHA citations can be deceptive; there’s a lot more involved than paying the fine and abating the citation. They can lead to additional lawsuits, penalties by other regulatory agencies, failed bids, and increased workers’ comp costs.

Employers must send a notice of intention to contest within 15 working days of receipt of the OSHA notice of proposed penalty. Every notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both. The decision to contest is a business decision that needs to be carefully weighed.

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