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

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

The ten most dangerous jobs

While it is generally known that the highest number of workplace fatalities occur among truck drivers and material moving occupations, the chances of a fatality are much higher in specific industries when the fatal work injury rate, calculated per 100,000 full-time equivalent workers, is used. According to a recent report in EHS Today, the ten most dangerous jobs are:

No. 1 – Loggers

The most-dangerous profession, loggers experienced 91 fatalities in 2016 for a fatality rate of 135.9 out of 100,000 workers, an increase of 33% since 2011, when it was ranked number two. Risks: falls, struck-by, dangerous tools such as chainsaws and axes

No. 2 – Fishers and related fishing workers

Fishermen experienced 24 fatalities in 2016 for a fatality rate of 86 out of 100,000 workers, which was a decline of 29% since 2011, when it was ranked number one. Risks: drowning, struck by lightning, crushed by equipment

No. 3 – Aircraft pilots and flight engineers

Pilots and flight engineers experienced 75 fatalities in 2016 for a fatality rate of 55.5 out of 100,000 workers, a slight drop from 2011. Risks: crashes

No. 4 – Roofers

Roofers experienced 101 fatalities in 2016 for a fatality rate of 48.6 out of 100,000 workers, an increase of 50% since 2011. Risks: falls, struck-by, and heat

No. 5 – Refuse and recyclable material collectors

Refuse and recyclable material collectors experienced 31 fatalities in 2016 for a fatality rate of 34.1 out of 100,000 workers, a decrease of 17% since 2011. Risks: dangerous machinery, crushed by equipment, struck-by, traffic accidents, struck by vehicle

No. 6 – Structural iron and steel workers

Steel and ironworkers experienced 16 fatalities in 2016 for a fatality rate of 25.1 out of 100,000 workers, a slight decrease from 2011. Risks: falls, struck-by, heat, crushed by materials

No. 7 – Truck drivers and other drivers

Employees who drive for work – including truck drivers – experienced 918 fatalities in 2016 for a fatality rate of 24.1 out of 100,000 workers, which is similar to 2011. Risks: traffic accidents, struck by vehicle, other drivers, construction zones, sleep deprivation, texting/talking while driving

No. 8 – Farmers, ranchers, and agricultural managers

Agricultural workers experienced 260 fatalities in 2016 for a fatality rate of 23.1 out of 100,000 workers, a slight decline from 2011. Risks: dangerous machinery, chemicals, heat

No. 9 – Supervisors of construction workers

First-line supervisors of construction trades and extraction workers experienced 134 fatalities in 2016 for a fatality rate of 18 out of 100,000 workers. Risks: struck-by, falls at height and on level, heat, use of large equipment

No. 10 – Grounds maintenance workers

New to the list, grounds maintenance workers experienced 217 fatalities in 2016 for a fatality rate of 17.4 out of 100,000 workers. Risks: heat, cold, noise, chemical exposure, ergonomics-related issues, machinery

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

Getting LOTO wrong is costly: Here’s how to get it right

Many companies believe they are in compliance with OSHA’s Lockout/Tagout (LOTO) standard; yet, it is one of the most difficult to comply with and is the number five violation in general industry and construction. To give you an idea of the standard’s complexity, a compliance directive to explain the enforcement policy and inspection procedures for compliance officers is 136 pages long, whereas the standard is only a few pages.

An increased focus on violations of Lockout/Tagout (1910.147) and Machine Guarding (1910.212, .213, .217, and .219) began in 2006 with the Amputations National Emphasis Program (NEP). This became even more pronounced when OSHA changed the requirements for reporting work-related fatalities and severe injuries in 2015. Employers must report any in-patient hospitalization, amputation or loss of an eye within 24 hours of learning of the incident.

When an amputation is reported, it’s almost certain that an inspection will take place. In 2017, more than 10% (3,596) of all OSHA inspections were under the Amputations NEP, 75% of which were in manufacturing, and 1,247 were triggered by employer reports.

What’s important to note is that this resulted in 7,850 citations, including 302 willful and repeat violations, which carry maximum fines of $126,749. The proposed total cost of the citations is over $55 million. In addition to the potential for costly fines is the even more ominous possibility of being placed in OSHA’s Severe Violators Enforcement Program (SVEP).

One of the criteria OSHA uses to place an employer in the SVEP is 2+ Willful, Repeat, or Failure to Abate violations related to high emphasis hazards. There are only nine high emphasis hazards and amputations is one of them. According to a Conn Maciel Carey PLLC webinar, 68% of the SVEP cases fall under this qualifying criterion.

When OSHA puts an employer in the SVEP, it issues a press release before employers can contest the citation(s). This can have a negative impact on recruiting employees, obtaining bids and permits, and be devastating to a company’s reputation. Moreover, there are mandatory follow-up inspections, inspections at related facilities, and corporate-wide abatements. It’s not a place employers want to be – once designated as a severe violator, there is no clear-cut method for getting out of the program. And it’s not only large employers that are affected. Small employers make up the majority, with about 75% having 100 or fewer employees and roughly 55% having 25 or fewer employees.

Lastly, LOTO is among the most frequent OSH Act criminal violations.

What employers get wrong

When OSHA conducts an inspection, it’s relatively easy to spot LOTO violations. In 2017, the most frequent standard section cited was related to machine-specific procedures: 1910.147(c)(4)(i) – procedures shall be developed, documented, and utilized for the control of potentially hazardous energy. Employers that are cited often misunderstand the scope of activities covered by LOTO. They often focus exclusively on electrical hazards, but the standard covers a broad range of energy sources, such as mechanical, hydraulic, pneumatic, chemical, thermal, or other types of energy.

The program must include written equipment-specific LOTO procedures for all equipment, including vehicles such as forklifts and trucks, with hazardous energy sources and must include all energy sources. While it is possible to group equipment and machinery that have the same hazardous energy sources and the same or similar methods of controlling the energy, some employers do not understand the criteria for grouping that is set forth in section IX of OSHA’s compliance directive, or may neglect to list all covered machinery in the scope of the energy control procedure.

In some cases, employers neglect to document key elements of the procedure. There are also specific rules that apply when a contractor services the machinery and noncompliance leads to citations.

Employers and employees may mistakenly believe a procedure falls under the minor servicing exception. The standard contains specific criteria that must be met for the minor servicing exception to apply and all elements must be satisfied for an exception. Other common mistakes include not updating the procedures when changes occur, applying the construction rather than general industry standard, and overlooking facility support and operational equipment, such as HVAC machinery, boilers, and compressors.

The second most frequently cited standard is 1910.147(c)(6)(i) – the employer shall conduct a periodic inspection of the energy control procedure at least annually to ensure that the procedure and the requirements of this standard are being followed. In this case, annual means every twelve months. Some companies have the wrong person conducting the inspection. It must be an “authorized employee” other than the workers utilizing the lockout/tagout procedure being inspected.

If machines are grouped together the inspection must be of a representative number of employees implementing the procedure. “Representative” is subject to interpretation, so it’s important to have a rationale for the number chosen (complexity, older procedure, etc.). Moreover, the outcome of the inspection must be reviewed with all authorized employees as part of the periodic inspection. Employers also must “certify” that the inspections include the machine or equipment on which the energy control procedure was being utilized, the date of the inspection, the employees included in the inspection, and the person performing the inspection. And inspections must take place for each one of the LOTO procedures.

The third most cited standard is 1910.147(c)(1) – The employer shall establish a program consisting of energy control procedures, employee training and periodic inspections to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, startup, or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source and rendered inoperative.

A written lockout procedure is not required when a machine only has one energy supply that’s easy to identify and lock out. The machine can’t have any potential for stored energy and locking that one energy isolating device completely de-energizes the machine. Even if an employer uses an outside contractor for servicing and does no in-house servicing, a LOTO program is required because there are affected employees.

Fourth is related to training. 1910.147(c)(7)(i) – The employer shall provide training to ensure that the purpose and function of the energy control program are understood by the employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by the employees.

Employers do a good job of training authorized employees, but sometimes overlook affected employees (who operate equipment being serviced) and all other employees who may be present in areas where LOTO is utilized, including management. Also, temporary employees often are forgotten. Another common problem is failure to develop “Group Lockout” procedures when more than two employees service a machine or to require use of a Group Lockout device.

Other common citations include wrong use of locks, wrong use of tags, and working under someone else’s lock.

Complying with OSHA’s Control of Hazardous Energy policy is difficult and the consequences for violating the regulation can be severe. Proposed changes in the regulation (see next article) may lead to more citations. An effective program will reduce the potential for employee injury as well as regulatory liability.

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

OSHA watch

Injury tracking application restored

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


Comments sought on lockout/tagout

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

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

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


Website changes

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

Trench safety symposium webinar available online

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

Safety training videos for tobacco farm workers

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

Enforcement notes

California

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

Florida

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

Massachusetts

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

New York

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

Pennsylvania

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

Wisconsin

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

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

PPE: Eleven common mistakes made by employers

One of the top safety issues for most employers is the purchase of personal protection equipment (PPE). The market for PPE has grown significantly and the options can be daunting. While a common goal is to keep workers safe by finding the most appropriate PPE for the demands of the tasks and the hazards faced, costs, sustainability, comfort, and employee acceptance also influence the decision.

Here are eleven common mistakes made by employers:

  1. Relying on what’s worked well in the pastWork processes change, the compliance environment is more demanding, and PPE improves. While employers generally rely on their PPE suppliers to stay ahead of the curve, it’s not enough for suppliers to offer a full range of effective, cost effective equipment and innovative technologies. Suppliers should be strategic partners – understanding your unique processes and hazards and how your employees work in your facility. They should also be helpful resources in navigating new standards and regulations such as the fall protection standards from OSHA and new equipment guidelines from ANSI.In addition to working with you to identify the most appropriate PPE, their services should include testing the equipment in your workplace, training for managers and employees, and evaluating the effectiveness of the choices. PPE should perform well over time, be used properly by employees, and improve business performance and safety.
  2. Seeking the “one product” solutionWhether it’s trying to simplify the purchasing process or provide the highest level of protection, well-intended PPE choices can produce unintended results. Cut-resistance gloves are a good example. When there is an increase in cuts and lacerations on the job, the tendency is to go to a glove that addresses the greatest cut hazard in your operation, with the thought that a higher cut rated glove will also protect less significant hazards. However, the PPE must match the task and risk and a higher ANSI cut level may not provide the necessary dexterity and create too much hand fatigue to do the task at hand. Rather than focusing on the glove, the entire process for hand safety needs to be examined.
  3. Failing to consider PPE part of an overall strategyA processing plant was experiencing a high number of slip and fall injuries. The company took an exhaustive look at flooring conditions, floor mats, and housekeeping behaviors as well as testing various footwear types. Protective footwear is designed to reduce hazards and improve safety, but it can’t provide total worker protection. PPE should be viewed as a supplement to engineering or job controls that can eliminate or minimize hazards and to workplace practices and procedures aimed at enhancing safety.
  4. Lacking a plan for everyoneWhile most employers have moved beyond the “one size fits all” approach to PPE, there are still areas that warrant improvement. Most PPE has been designed based on average male body measurements and offer limited options for women. But the workforce has changed and savvy suppliers are addressing the issue. This was recognized in the new ANSI standard 107-2015 that addresses some of the long overlooked issues with Hi-Vis apparel and accessories, including size and fit. The updated standard became less design-restrictive allowing for smaller sizes to accommodate smaller body frames without compromising protection, a welcome change for women.
  5. Failing to consider comorbidities, including obesityThe obesity epidemic has affected most industries, yet many are still using PPE and ergonomic tools that were designed for workplace populations that were more fit. Falls from height are common in construction. Much of the fall equipment is typically rated to only 310 pound, although there is equipment available that exceed this limit. The sobering fact is the percentage of workers on the job whose total weight (body weight, tools, and PPE) exceeds the design specifications of some fall protection equipment.
  6. Not involving employees in the selection processWhen selecting PPE, there are many factors to consider – regulatory compliance, contractual agreements, type of exposure, cost, durability, and appropriateness. But if your employees won’t wear it when it is needed, day in and day out, all your effort is for naught. Top reasons employees do not wear PPE are discomfort, poor fit, unattractive, feel it is unnecessary for the task, or don’t have time. This is why it’s important to involve employees in the testing and selection of equipment.
  7. Getting caught off guard by fashion trends or cultural eventsFrom full-on beards to trimmed moustaches, facial fringe continues to be a top trend in 2017. This trend plus popular cultural events such as “Movember” or “No-Shave November” – the male health counterpart to the popular Susan G. Komen pink ribbon campaign – pose safety concerns for employees who use respiratory protection. Even if an employee can pass a quantitative fit test using a PortaCount, the NIOSH requirement states that you may not have facial hair that interfers with the seal of a facepiece. Employers need to be aware of trends and make sure their written program includes relevant policies and that employees are trained, monitored, and understand the requirements for worker safety.
  8. Failing to maintain and replace PPEA supervisor may try to look good and save money by telling workers to use chemical protective gloves for a week, rather than the specified one day limit, a worker is protected from falling debris by his hard hat and deems it his “lucky” hat and wears it every day, workers keep reusing earplugs inside their hard hats, harnesses are not cleaned nor stored properly, and so on. These workers have failed to maintain and replace PPE as needed and have put themselves at risk. Employers need to know when to replace PPE and when to purchase PPE versus having it tested for repeated use. And test tools need to be up to date. Establishing a regular schedule of testing and replacement helps ensure PPE is not used past its prime.
  9. Don’t enforce useLack of enforcement is one of the main reasons why employees don’t use PPE. PPE compliance does not happen in a vacuum; it’s dependent on work practice control and manager buy-in. When a hazard cannot be engineered out, companies rely on safe working practices and PPE. Failure to enforce use is widespread across many industries. One example is healthcare. Despite an increase in sharps injuries and exposure to blood and bodily fluids, many health care workers are not wearing appropriate personal protective equipment, according to the International Safety Center. It found that fewer than seven percent of workers exposed to blood and bodily fluid splashes reported using eye protection, although about two-thirds of the workers’ eyes were splashed. Collecting data on use can be a wake up call for many companies.
  10. Using technologies for surveillance under the veil of enhancing safetyWearable technology, which involves gathering data via smart sensors, is growing in prevalence in PPE and can help managers understand where workers are and when they are in an unsafe condition or place. The possibilities seem endless – from helping ergonomists to engineer risk out of tasks to a smart construction helmet that increases user efficiency through connectivity with the control room. But, it can raise privacy challenges, particularly when used for surveillance or other sensitive issues. Employers need to be upfront about what data is being collected and how it will be used, and have a written policy.
  11. Inadequate trainingTraining is not one and done and, in some cases, there seems to be the expectation that employees already know PPE protocols, afterall much of it is common sense. There are many points that need to be covered in training and reinforced in implementation from donning to doffing PPE:
    • When employees have to use
    • Limitations of protection
    • How to inspect
    • How to put on and adjust
    • How and when to remove safely
    • How to care for and store
    • Useful life
    • How to replace worn or damaged PPE
    • Where to dispose of PPE that might be contaminated by hazardous substances

    A trained supervisor or manager should verify that PPE is being utilized according to protocol.

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Things you should know

Employer control over medical providers can lower costs for spinal injuries

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

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

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

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

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

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

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

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

California

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

Florida

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

Illinois

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

Mississippi

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

 

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Legal Corner

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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