OSHA alert: Injury reporting records take on increased importance and upcoming deadlines

Form 300A posting deadline: February 1, 2019
Electronic rule making update
Form 300A electronic submission deadline: March 2, 2019
How the data is being used: Site-Specific Targeting Initiative

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. Two important dates are approaching. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located in workplaces, no later than February 1, 2019 and kept in place until April 30.

Under the electronic record-keeping rule, certain employers must submit the form electronically to OSHA by March 2, 2019. And there is now an inspection targeting plan based on the data submitted under this rule, subjecting employers to further scrutiny of their injury and illness rates. Given the potential impact for inspections, employers should carefully ensure they submit accurate records. They should also proactively monitor and address patterns in their injury and illness rates to lower recordable injuries.

Form 300A posting deadline February 1, 2019

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

Standard interpretations on recordkeeping issued in 2018 include:

  • Prescription medications, such as an Epi-Pen considered medical treatment beyond first-aid. – [1904.7]
  • Clarification on the use of a cold therapy only setting on a therapeutic device is first-aid – [1904.7(b)(5)(ii)]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. Even if there were no recordable incidents in 2018, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

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

Electronic rule-making update

Last month, the U.S. District Court for the District of Columbia denied the Trump administration’s motion to dismiss litigation challenging OSHA’s decision to suspend parts of its electronic record-keeping rule. Initiated by three public health advocacy groups, Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists, the lawsuit argued that OSHA’s action was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline subject to review.

However, importantly, the federal court also denied a preliminary injunction barring OSHA from implementing its planned delay, noting the advocacy groups had not demonstrated that they will suffer irreparable harm absent preliminary injunctive relief. Also, the court decision was not on the merits of the case, but rather on whether the group had standing to sue or the case should be dismissed as OSHA argued.

Originally, as part of its electronic recordkeeping rule, OSHA mandated that certain employers submit 2017 data from Forms 300, 300A and 301. However, on July 30, 2018 a proposed rule officially eliminated the Forms 300 and 301 data submission requirements. While the Fall 2018 Regulatory agenda had predicted that the proposed regulation would go over to OMB’s Office of Information and Regulatory Affairs (OIRA) on time for the standard to be issued in June 2019, the final draft was submitted earlier than expected on December 7, 2018.

But for many employers this proposed rule does not go far enough. Since it does not rescind the agency’s plan to publish employer information, they argue it puts employers at risk for improper disclosure and release of sensitive employer information. Nor does it formally repeal the provisions regarding post-incident drug testing or incentive programs, although an October 2018 memorandum was issued to clarify these provisions. And the anti-retaliation provisions are unchanged.

Form 300A electronic submission deadline: March 2, 2019

Establishments with 250 or more employees that are currently required to keep injury and illness records under the Recordkeeping Standard, as well as establishments with 20-249 employees that are also covered by the Recordkeeping Standard and operating in certain industries with historically high rates of occupational injuries and illnesses are now required to submit their calendar year Form 300A electronically by March 2, 2019.

How the data is being used: Site-Specific Targeting Initiative

On Oct. 16, 2018, OSHA launched a “site-specific targeting” plan, SST-16, that uses employer-submitted data from 2016 to select non-construction worksites for inspections. The SST-16 directs that “OSHA will create inspection lists of establishments with elevated Days Away, Restricted or Transferred (DART) rate, together with a random sample of establishments that did not provide the required 2016 Form 300A data to OSHA.” The employers are chosen using software that randomly selects the establishments.

Although establishments with elevated DART rates and those that did not submit the required data are the primary targets, establishments with lower DART rates can also be inspected. A random sample of low injury rate establishments on the inspection list will be selected to verify data accuracy.

While OSHA inspections are generally unwelcome, SST inspections are particularly onerous. They are unannounced, comprehensive, and can take significant time and resources. They are not limited to recordkeeping practices, potentially hazardous areas, or operations with an elevated DART rate, and often result in substantial citations. Employers that failed to comply with the electronic reporting requirements for 2016 or reported a high elevated DART rate (compared to industry average rates) would be wise to begin preparing for an inspection.

Despite the expectation that the Trump Administration would significantly lessen the burden of data submission requirements on employers, much of it appears here to stay, at least for a while. There have been fewer shifts in OSHA enforcement and rulemaking than expected by experts, who point to the leadership void at the agency. While Scott Mugno’s nomination was sent to the Senate on Nov. 1, 2017, it has been stalled and OSHA still does not have a Senate-approved Assistant Secretary – the longest ever vacancy.

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

OSHA’s removal of the term “unexpected energization” from the LOTO standard likely to lead to more citations

Under the Obama administration, OSHA began an effort under the Standards Improvement Project 4 to fix minor, noncontroversial issues in several existing regulations, including the lockout/tagout regulation. While these issues typically include correcting typos, eliminating redundancies and clarifying vague language, the proposal to remove the term “unexpected energization” from the lockout/tagout regulation is a significant change, according to many experts.

There was a 6th Circuit court case in 1996, Reich v. GM Delco interpreting the term “unexpected energization” that is used in the standard. Employers have relied upon this decision for over 20 years. In this case, the court found that alarms and flashing lights provided sufficient warning of a machine starting up and removed the risk of unexpected energization and overturned the willful lockout/tagout violations.

In so doing, the court noted that the standard “unambiguously renders LOTO inapplicable where an employee is alerted or warned the machine is about to activate.” It went on to say that it applies “where service employee is endangered by a machine that can startup w/out employee’s foreknowledge.” It is not unexpected if:

  • Alarm gives clear, audible, timely warning
  • Controls located so servicer is necessarily aware of start-up
  • Equipment unplugged & exclusively controlled by servicer

Experts postulate that the change will result in more citations because it removes one well known method of addressing hazardous energy. OSHA also is scheduled to complete its Standards Improvement Project IV in FY 2018.

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

OSHA news

Deadline for electronic injury, illness reports was Dec. 15 now Dec. 31.

OSHA delayed reporting requirement until Dec. 31 for employers to electronically submit injury and illness data. The agency’s final rule was published in the Nov. 24 Federal Register. According to OSHA, the delay allows “affected employers additional time to become familiar with a new electronic reporting system.”

The Improve Tracking of Workplace Injuries and Illnesses final rule, as it is formally known, mandates that employers with 250 or more workers, as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing, electronically submit OSHA’s Form 300A. OSHA then would make the information public on its website.

OSHA is currently reviewing the other provisions of its final rule and intends to publish a notice of proposed rule-making to reconsider, revise or remove portions of that rule in 2018.

For the next reporting deadline of July 1, 2018, if you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html

 

Few citations given under the anti-retaliation provisions of the electronic record-keeping rule

The electronic record-keeping rule’s anti-retaliation provisions went into effect Dec. 1, 2016 and required employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically barred employers from retaliating against employees, and mandated that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting. Employers were encouraged to evaluate employee incentive programs related to injuries to be sure they did not violate the rule.

In addition, OSHA’s interpretations of the anti-retaliatory provisions warned that post-incident drug and alcohol testing could deter employees from reporting injuries and illnesses. Therefore, post-injury drug and alcohol testing policies should be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.

These provisions were controversial and the basis of some litigation against the rule. However, according to a recent article in Business Insurance, OSHA has issued only a handful of citations under anti-retaliation provisions since they went into effect last year, with several open investigations.

The article noted that Ann Rosenthal, associate solicitor for the division of occupational safety and health with the Labor Department’s Office of the Solicitor in Washington, told attendees of the American Bar Association’s annual Labor and Employment Law Conference some citations were issued against unnamed employers related to incentive programs in which employees were penalized for injury and illness reporting. This included one employer whose program gave bonuses to employees who did not report lost-time days while those who reported them did not get bonuses. But several employers quickly settled these complaints by agreeing to change their policies and giving employees the incentives. “The rule can’t really outlaw the incentive programs,” Ms. Rosenthal said. “You can have the policy – you just can’t apply it to penalize the workers who report the injuries.”

She also noted she was not aware of a single drug testing case under the federal OSHA plan since the anti-retaliation provisions went into effect. Even though this information is encouraging for employers, it does not mean the rule can be ignored. Implemented properly and in compliance with the rule, incentive programs and post-accident drug testing are possible.
Fatality and serious injury reporting rule lessons from past three years

OSHA’s Fatality & Significant Injury Reporting Rule, which went into effect January 1, 2015, required employers to report all work-related fatalities within 8 hours and all work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours. A recent webinar by Conn Maciel Carey, a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation, noted that each year the rule has been in effect, the number of reports has increased. This, in spite of the fact that overall workplace injuries have declined.

Through October 2017, there were 7,248 hospitalizations reported and 2,403 amputations reported. On an annualized current year basis, this is projected to be 11,581 total reports, compared to 10,395 in 2015. Once a report is made, one of three things happen: a mandatory inspection occurs, the Area Director has discretion to decide a course of action, or a rapid response investigation letter is sent. In 2017, there is a 47% inspection rate for reported amputations and a 26% inspection rate for fatalities.

In the webinar, Conn Maciel Carey noted that there are several instances where reports are submitted when they are not required under the rule. For example, the rule requires reporting “formal admission to the inpatient service of a hospital or clinic for care or treatment.” It does not include admission for observation or testing (even after receiving medical treatment in ER), outpatient care or care in a hospital prior to formal admission, and no longer requires overnight stay. An example they obtained from OSHA:

“Employee breaks leg, goes to ER where he begins to bleed out. ER replenishes blood before setting leg, but sends patient from ER to a ward where he is admitted for monitoring because of blood loss – NOT Reportable”

Timing is also a source of non-mandatory reporting. Injuries/fatalities are reportable only if:

  • Fatality results within 30 days of the day of the incident
  • Hospitalization occurs within 24 hours of the incident
  • Amputation / eye loss occurs within 24 hours of incident

Hospitals will often delay admissions because reimbursements for emergency services are higher or they may do major medical treatment in the emergency room followed by in-patient admission for observation only. For this reason, it is important to determine if the incident is truly reportable before making the report.

In addition to the over reporting of hospitalizations, other common mistakes include failing to report minor fingertip amputations, reporting non-employee injuries, making verbal or written admissions in the report, and only identifying “employee misconduct” as the reason. It’s important to note, that California has stricter rules and the federal rules should not be followed there.

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.

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

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.

 

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

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.

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

OSHA watch

Legislative updates (see first article for details)

  • Electronic record-keeping rule delayed, but anti-retaliation provisions remain
  • Walkaround rule rescinded
  • Enforcement of silica standard for construction delayed until Sept. 23

No major budget changes for FY 2018, but shifting priorities

The proposed FY 2018 budget includes $543 million with $130 million for “federal and state compliance assistance activities to enhance employer outreach and training.” The budget for fiscal year 2017, which ends Sept. 30, was $552.8 million. While adding money to compliance assistance, the proposed budget slashes funding for the standards and statistics programs. Enforcement remains intact and there are no new riders that would prohibit the agency from enforcing any standards or other parts of the law.

Meanwhile, the Mine Safety and Health Administration would see relatively small changes in funding for fiscal year 2018, but NIOSH might experience a sizable reduction in its budget, and the Chemical Safety Board still is scheduled for elimination.

New videos and infographics provide facts on falls

Falls are the leading cause of death for construction workers, accounting for 367 of the 985 construction fatalities recorded in 2015. Two videos have been posted on the Stand-Down homepage and a series of infographics can be downloaded.

Enforcement notes

Illinois

Demolition company faces $152,000 in fines following death of worker

Omega Demolition Corp. was working on the demolition of an I-90 bridge when a falling beam injured several workers and killed one. An investigation found that the company overstressed the beam, resulting in the beam’s failure and $152,000 in fines was levied. A commission has been set up to review the findings and determine whether the fines and citations will stand and what additional measures the Illinois Tollway will take.

Massachusetts, Maine

Railroad company violated whistleblower’s right and ordered to pay $260,000

A federal appeals court has affirmed that Pan Am Railways, Inc. must pay $260,000 in punitive and compensatory damages and take corrective action on behalf of an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint. The court found the North Billerica-based commercial railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

Michigan

Landscaping company hit with $222,000 in safety fines, stop-work order

Failure to abate safety hazards, including not using traffic control devices when employees were working near the road, not training workers on tree-trimming operations and safeguards, and not using a chipping machine in a safe manner led to a cease-operation order against Sunset Tree Service & Landscaping LLC. The company has a history of violations.

Auto insulation manufacturer faces fines of $569,463

An Ohio-based employee of Michigan, Farmington Hills-based Autoneum North America suffered an amputation of his right hand, wrist and part of his forearm when his arm got caught in a shredding machine at the auto insulation manufacturer plant in Oregon, Ohio. The company faces $569,463 in proposed penalties for failure to equip the machine with adequate safety guards.

Ohio

Automotive steel manufacturer faces $279,578 in penalties

Canton-based Republic Steel, an automotive steel manufacturer, is facing $279,578 in proposed penalties after investigators found workers at its plant exposed to machine hazards and lead.

South Dakota

Sioux Falls-based Hultgren Construction L.L.C. faces two willful citations and a proposed penalty of $101,400 for failing to properly train and instruct employees, for exposing employees to struck-by and crushing hazards, and not performing an engineering survey prior to beginning demolition. The company was renovating a historic building in downtown Sioux Falls when the building collapsed, killing one of its employees.

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

Legislative update

OSHA delays electronic record-keeping rule, but anti-retaliation provisions remain

OSHA announced on its website on May 17 that it “is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.” There was no word on when, or whether, a new deadline would be set for data submission.

Although there were indications that OSHA had beta tested a secure portal with the help of a few national employers and employment organizations, the suspension did not come as a surprise. At the time the rule was published, it was noted that the portal would be live on February 1, 2017, but, after the election, there were no updates from OSHA about how precisely the database would function or when it would go live.

It’s uncertain what will happen going forward. According to the Washington Post, an OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers’ “concerns about meeting their reporting obligations.”

There are several possibilities. The Administration may formally rollback the new rule through notice and comment rulemaking to rescind all or at least this portion of the rule. Another possibility is that the rule stands or stands without the public viewing aspects. There are two ongoing lawsuits challenging the rule, which are in the early stages of litigation. It’s possible the agency will wait for the outcome of the cases. Also, the new Secretary of Labor Alexander Acosta has only recently assumed his position, so action may be delayed until Secretary Acosta’s new team at OSHA is in place. The rule is not dead… it’s wait and see.

Anti-retaliation provisions remain

The electronic filing delay does not affect the anti-retaliation provisions of the rule that went into effect in December 2016. Employers must inform workers of their right to report work-related injuries and illnesses, and they can’t retaliate against employees for doing so.

According to OSHA guidance on the anti-retaliation provisions, employers must establish reasonable procedures for reporting injuries. The guidance recommends limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

Business groups have also challenged this provision in court, arguing that OSHA exceeded its authority. A court denied a preliminary injunction that would have blocked the provisions; however, it is still possible the court could find it illegal.

While it is unknown how aggressive enforcement efforts will be, the rule is in effect and employers need to comply. Employers should have reviewed drug testing policies and safety incentive programs in light of OSHA’s guidance. Also, they should document informing employees of the right to report injuries without retaliation and how to report, as well as post the latest version of OSHA’s Rights poster.

OSHA rescinds walkaround rule

OSHA has changed its policy on allowing employees at non-union workplaces to choose a union-affiliated representative for “walkaround” inspections, according to an April 25 memo sent to regional administrators.

The policy began in 2013 but was being challenged in court by the National Federation of Independent Business, with help from the Pacific Legal Foundation. Following the memo, the lawsuit was withdrawn on April 27.

OSHA delays enforcement of silica standard for construction

Enforcement of the silica standard for construction was set to begin June 23, but has been delayed to Sept. 23. The delay is necessary for OSHA “to conduct additional outreach and provide educational materials and guidance for employers,” according to the agency.

Despite the delay, OSHA said it expects employers in the construction industry to take steps toward implementing the standard’s requirements.

Feds won’t tackle medical marijuana

Given Attorney General Jeff Sessions’ negative position, there was much speculation if there would be efforts to resolve the conflict between federal and state laws on medical marijuana, which is still considered a Schedule I drug by the U.S. Drug Enforcement Administration, but is now legal in 29 states. President Trump signed House Resolution 244, a $1.1 trillion appropriations plan that includes language that will prevent the federal government from spending money to fight medical marijuana.

According to a press statement from the White House, a section of the bill “provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various states and territories.”

DOL withdraws guidance on employee definitions

On June 6, the U.S. Department of Labor withdrew Obama administration guidance on joint employment and independent contractors that expanded the definition of employees. The statement withdrawing the guidance noted: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.” It is expected, however, that employers, who can now rely on the law rather than administrative interpretations, will laud the news.

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

Four troubling trends threaten worker safety

Despite the remarkable strides that employers have made in reducing workplace injuries, there are several persistent issues that threaten worker safety. Here are four of them:

  1. Disconnect between employer and employee perception of value of productivity over workplace safetyIn a recent survey, Employee Perceptions in Workplace Safety, by the National Safety Council (NSC), over one-third of the employees surveyed claimed that workplace safety is secondary to performing tasks. This perception was even much higher in certain industries: 68% in agriculture, forestry, fishing and hunting; 58% in construction; and 45% in manufacturing or industrial facilities.

    The report also found that 32% of respondents agreed that employees “are afraid to report safety issues,” and 30% agreed “employees are resistant to working safely.” Of those surveyed, 39% agreed that management does only the “minimum required by law” when it comes to employee safety. 32% feel management ignores an employee’s safety performance when determining promotions.

    On the other hand, 71% stated that safety training is part of orientation, and 68% of those surveyed agreed that employees are well trained in emergency practices. 62% say everyone is involved in solving job safety issues. 63% of employees feel they work in areas or at stations that are ergonomically correct.

    Takeaway: Even in companies that have a safety strategy aligned with their organizational goals, there can be a safety-vs.-production dichotomy. This can come from unrealistic deadlines, poor supervision, inadequate communication, lack of accountability, workers’ perception that personal productivity solely drives raises, or a high tolerance for risk among some employees. Find out how your employees view safety and productivity. Are there conflicts, if so, what are they and how do they resolve them? Many successful companies have demonstrated that high value on safety and productivity can co-exist and help achieve long-term profitability.

  2. Motor vehicle crashes are leading cause of workplace fatalities and roadways are getting more dangerousIt’s not falls, fires, explosions, or chemical exposure that kills workers the most on the job; it’s motor vehicle crashes. According to the Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary, 2015 (latest data available), roadway incident fatalities were up 9 percent from 2014 totals, accounting for over one-quarter of the fatal occupational injuries in 2015.

    Drivers are often lulled into a false sense of security with hands-free and in-vehicle technology. An NSC survey found that 47% of motorists are comfortable texting while driving. There’s also a false sense that summer is a safer time to drive with better weather and road conditions. However more auto accidents occur during the summer time than any other time of the year.

    According to the NSC, the increased serious injuries and fatalities from motor vehicle crashes continue a troubling multiyear surge that experts believe is being fueled, in part, by more people driving while distracted by cellphones, infotainment screens, and other devices. Other factors include an improving economy, lower gas prices, and younger, more inexperienced drivers.

    And then there are the challenges that face the trucking industry. Heavy and tractor-trailer truck drivers incurred 745 fatal work injuries in 2015, the most of any occupation.Truck drivers also had more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries were serious sprains and strains; this may be attributed to the fact that many truck drivers must unload the goods they transport. A driver shortage, a rapidly aging driver population, as well as issues with driver fatigue, obesity, and other co-morbidities challenge the industry. And in many delivery zones, there has been an increase in pedestrian strikes, not caused by drivers but by distracted pedestrians.

    Takeaway: Any company utilizing vehicles for business purposes – even if those vehicles are employees’ personal cars – can feel the impact of rising accidents. The average work-related motor vehicle injury claim costs $72,540, which is twice as much as other work-related injuries. Those who have not instituted policies to minimize distracted driving need to do so. Random checks on compliance with the policy and discipline for non-compliance are key. Employers can also strengthen hiring practices and use fleet telematics, when appropriate.

    These policies should be regularly communicated to help reinforce the message. There are good public awareness campaigns, including an informative website, distraction.gov, in which employers can download forms to use in obtaining a pledge to not engage in distracting activities while driving. Recently, the NSC created a webinar offering recommendations not only on eliminating distractions in vehicles, but also on how to be alert and react to the actions of other distracted drivers on the road.

  3. Fatalities in construction outpace employment growthThe number of fatalities among construction workers climbed to 985 in 2015 after dipping to 781 in 2011, an increase of 26% compared to employment growth of 16%. Fall-related fatalities increased at a faster pace – rising 36% to 367 in 2015, according to the report by the Center for Construction Research and Training (CPWR).

    Data presented in the report comes from the Bureau of Labor Statistics. Other findings:

    • 55 percent of fatal falls came from heights of 20 feet or less.
    • 33 percent of fatal falls involved falls from roofs, 24 percent involved ladders, and scaffolds and staging accounted for 15 percent.
    • Fatal falls in residential construction rose to 61 in 2015 from 26 in 2011.
    • Roofers continue to experience the highest rate of fatal falls to a lower level: 31.5 per 100,000 full-time workers, although this represents a decrease from 39.9 in 2014.
    • Workers at an increased risk of fatal falls include Hispanic workers, foreign-born workers, and workers 55 years and older.

    Takeaway: The findings in this report emphasize the need to reduce falls and the importance of ongoing vigilance. CPWR, OSHA and NIOSH have a variety of resources available and the Campaign to Prevent falls in construction website includes Eleven Ways to keep your fall prevention program alive all year long.

  4. Impaired workforce: drug use at 12-year highCocaine, marijuana and methamphetamine use continues to climb among workers, though opioid use is down, according to a May 2017 study by New Jersey-based Quest Diagnostics Inc. Cocaine positivity increased 12 percent in 2016, reaching a seven-year high of 0.28 percent, compared to 0.25 percent in 2015, and seven percent among federally-mandated, safety-sensitive workers to 0.28 percent, compared to 0.26 percent in 2015. Marijuana positivity increased dramatically over the last three years with increases in Colorado and Washington double the national average. In oral fluid testing, which detects recent drug use, marijuana positivity increased nearly 75 percent, from 5.1 percent in 2013 to 8.9 percent in 2016.

    Amphetamines (which includes amphetamine and methamphetamine) positivity continued its year-over-year upward trend, increasing more than eight percent in urine testing compared to 2015. Throughout the last decade, this rise has been driven primarily by amphetamine use, which includes certain prescription drugs such as Adderall.

    On a positive note, heroin detection remained flat, while prescription opiate detection declined.

    Takeaway: The efforts to control opiate prescribing in workers’ comp have produced promising results. However, the answer to the problem of drugs in the workplace remains elusive. The regulations governing drug testing are more restrictive, there is no established standard of what constitutes impairment when it comes to marijuana, alternatives to chronic pain treatment are still emerging, and employees often do not understand the perils of some prescription medications. In addition to a carefully crafted drug-free workplace policy, training supervisory staff to identify and know what to do if they suspect an employee has a problem and educating employees on their role in keeping the workplace safe are key.

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

 

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScope™ Benchmark 2017

The 17th edition of CompScope™ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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