OSHA Watch 2

Guidance to ensure uniform enforcement of Silica Standards

compliance directive was issued, designed to ensure uniformity in inspection and enforcement procedures when addressing respirable crystalline silica exposures in general industry, maritime, and construction. The directive provides compliance safety and health officers with guidance on how to enforce the silica standards’ requirements and provides clarity on major topics, such as alternative exposure control methods when a construction employer does not fully and properly implement Table 1, variability in sampling, multi-employer situations, and temporary workers.

Trenching webinar

A webinar on trench safety hosted by the agency and the American Society of Safety Professionals is available free online.

Recent fines and awards

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Jensen Beach and Port St. Lucie. The contractor faces penalties totaling $199,711.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Action Roofing Services, Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at a worksite in Boca Raton, Florida. The roofing contractor faces $51,952 in penalties.
  • Two construction contractors, CMR Construction & Roofing LLC of Panama City, and Modern Construction Experts LLC of Stuart, were cited for failing to protect employees from fall hazards at a construction worksite in Panama City. The two companies face $126,169 in penalties. An employee fatally fell 84 feet while working on the roof of a hotel.
  • After receiving notice of an employee hospitalized after a trench collapse, an inspection was initiated at Florida Progress LLC, operating as Duke Energy Florida LLC. The Charlotte, North Carolina-based electric power distributor faces $53,976 in penalties for exposing employees to excavation hazards at a Zephyrhills, Florida, worksite.

Georgia

  • Norfolk Southern Railway Corp. has been ordered to reinstate and pay more than $150,000 in back wages for whistleblower violations after terminating an employee for reporting an on-the-job injury at its Atlanta facility, and also filing an alleged violation report with the Federal Railroad Administration (FRA). The company was also ordered to pay the employee $75,000 in punitive damages, $10,000 in compensatory damages, and attorney’s fees.
  • Inspected under the National Emphasis Program on Trenching and Excavation, Construction Management & Engineering Services Inc. was cited for exposing employees to excavation hazards at a Duluth worksite. The Norcross-based construction contractor faces $134,937 in penalties.

Illinois

  • Grain firm Farmers Elevator Co., Manteno, received citations for two willful and three serious violations and a fine of $205,106 after a worker died at its Grant Park facility when he fell into a grain bin. The company was placed in the Severe Violator Enforcement Program.

Nebraska

  • A federal appeals court confirmed a serious citation issued to Jacobs Field Services North America Inc. for failing to ensure “appropriate” personal protective equipment was worn by an electrician who was seriously burned. While the company argued that the work area was “deenergized” and fell under an “Electrically Safe Work Condition,” as well as unpreventable employee misconduct, the judge found the company had violated the standard requiring PPE when “there are potential electrical hazards.”

For additional information.

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

Controlling workers comp costs: insights from five studies

Study: 2020 workplace safety index – Liberty Mutual Holding Co. Inc.

Findings: Each year this study researches the top 10 causes of the most serious workplace injuries, those that cause employees to miss work for more than five days, and ranks the causes by their direct cost to employers, based on medical and lost-wage expense. Further, it drills down this data for eight specific industries: construction, health care and social assistance, manufacturing, professional services, retail, transportation and warehousing, hospitality and leisure, and wholesale.

Overexertion from handling objects accounted for nearly a quarter of all workplace injuries and cost employers $13.98 billion, according to the index. Falls on the same level accounted for 18% of injuries at a cost of $10.84 billion, and struck-by injuries from objects or equipment made up 10% of injuries, costing $6.12 billion.

Takeaway: This helps employers understand the top risks in the workplace to better allocate safety resources.

 

Study: Top 10 Most Dangerous Jobs of 2020 – EHS Today

Findings: This list of the top ten most dangerous jobs is based on the fatal work injury rate, which is calculated per 100,000 full-time equivalent workers. Loggers were the number one most dangerous profession followed by fishers and related fishing workers.

Takeaway: Rather than looking at the total number of workplace deaths, this study offers a closer look at exactly how often a worker dies while employed in a specific industry. It enables employers to know when the chances of a fatality are high.

 

Study: Motor Vehicle Accidents in Workers Compensation – National Council on Compensation Insurance (NCCI)

Findings: From 2011 to 2016, the frequency of all workers compensation claims decreased by 20.1 percent while claims caused by motor vehicle accidents increased by 4.9 percent. Motor vehicle accident lost-time claims continue to cost over 80% more than the average lost-time claim because such claims tend to involve severe injuries to such body parts as head, neck, and spine. The study points to the rapid expansion of smartphone use as a possible cause.

Takeaway: An effective and consistently implemented distracted driving policy is critical for any business with employees who drive as part of their job.

 

Study: Comparing Physician Services in Workers Compensation and Group Health – NCCI

Findings: Injuries cost more, much more for some conditions, when they’re covered by workers’ compensation rather than group health insurance. Overall, comp costs are about 177% of group health costs. The costs for treatment are only slightly higher than group, but the utilization (number of treatments) is significantly higher.

Takeaway: The author suggests, “Some workers’ compensation claimants and claimant attorneys may find an incentive to seek additional medical care to support wage replacement benefits over a longer healing period or to negotiate a better settlement.” Partnering with an occupation medicine provider can help control the quantity and efficiency of medical services.

 

Study: Biopsychosocial Approach to Identify and Treat At-Risk Injured Workers – One Call Care Management Inc.

Findings: A small percentage of claims (five percent) account for a disproportionate percentage (25 percent) of the costs of physical therapy and rehabilitation. In fact, the average cost associated with that top five percent is more than five times the average cost. These cases are often not identified as problematic until after a treatment plan exceeded the initial guidelines. Predictive analytics can help identify at-risk workers early in the process and lead to an intervention plan that improves outcomes.

Takeaway: Share all you legally can about an injured worker’s type of work and medical history that can help flag at-risk cases.

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

OSHA Watch 1

New resources – COVID-19

 

California becomes first state to adopt standard to protect agricultural employees working at night

A new workplace safety standard to protect agricultural employees who work at night became effective July 1 and will be enforced by Cal/OSHA. It’s designed to protect agricultural workers who harvest, operate vehicles, and do other jobs between sunset and sunrise.

Judge rejects AFL-CIO lawsuit calling for emergency temporary standard on infectious disease

The U.S. Court of Appeals for the District of Columbia Circuit on June 11 rejected an AFL-CIO lawsuit calling on the Department of Labor and OSHA to issue an emergency temporary standard on infectious diseases.

Virginia is creating COVID-19 emergency workplace standard

The state’s Safety and Health Codes Board voted June 24 to create an emergency temporary standard, which essentially requires employers to follow CDC guidelines or face fines. The proposed standards are expected to go into effect July 15.

DOL Inspector General review of OSHA actions during pandemic

Faced with mounting criticism about the agency’s response to the pandemic, the Department of Labor Office of the Inspector General issued a three-page report on June 17. The report notes responding to the “significant increase” in worker and whistleblower complaints during the COVID-19 pandemic, along with completing inspections and investigations, all in a timely manner, are among the challenges facing OSHA and the Mine Safety and Health Administration, given the limited resources available. OSHA has six months to issue a citation and proposed penalties.

Employers’ injury, illness data is public information

Data from Form 300A is not confidential and there are no restrictions on its dissemination according to a court ruling from the U.S. District Court for the Northern District of California. The ruling stemmed from a lawsuit made by the nonprofit news organization Center for Investigative Reporting under the Freedom of Information Act, seeking information from OSHA Forms 300A, 300 and 301 forms. The agency no longer collects information from Forms 300 and 301.

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

Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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

OSHA watch

National Emphasis Program to reduce or eliminate worker exposure to silica extended in Pennsylvania, Delaware, West Virginia, and District of Columbia

An initiative to increase the focus of inspections in maritime, construction, and general industries on identifying, reducing, or eliminating worker exposures to respirable crystalline silica has been launched. The NEP on respirable crystalline silica targets specific industries in each area that are expected to have the highest numbers of workers exposed to silica. It also focuses on enforcement of two new silica standards, one for the general and maritime industries, and one for the construction industry. Compliance assistance is available until May 3, 2020, after which inspections under the NEP will begin.

National Safety Stand-Down to Prevent Falls postponed

The 7th annual National Stand-Down to Prevent Falls in Construction, originally scheduled for May 4-8, 2020, was postponed due to the COVID-19 pandemic. The event will be rescheduled this summer.

National Safety Stand-Down to Prevent Falls webinar

The National Safety Stand-Down to Prevent Falls will conduct an April 16 webinar on fall prevention practices.

Whistleblower protections public meeting

public meeting on May 13 will solicit comments on the whistleblower protection laws. The public will also be able to participate in the meeting by telephone.

Voluntary Protection Programs manual revised

The Policies and Procedures Manual for the Voluntary Protection Programs was recently revised.

Recent fines and awards

Florida

  • Turnkey Construction Planners Inc., based in Melbourne was cited for exposing employees to fall hazards at two worksites in Port Saint Lucie. The roofing contractor faces $114,294 in penalties.

Illinois

  • Monahan Filaments LLC., based in Arcola, was cited for violations of machine safety standards after an employee suffered severe injuries. The manufacturer of synthetic filaments for brushes and brooms faces $258,271 in penalties and was placed in the Severe Violator Enforcement Program (SVEP).

Massachusetts

  • In response to a complaint, Dollar Tree Stores in Boston was cited for exit and storage hazards and faces $523,745 in penalties. The national retailer received two willful and three repeat violations.

Missouri

  • R&R Contracting Services Inc. was cited after an employee suffered fatal injuries when he was crushed by a powered industrial truck at the company’s O’Fallon facility. The portable restroom service provider faces nine serious violations and proposed penalties of $52,626.

Nebraska

  • Interstate Commodities, based in Troy, New York, faces $228,592 in penalties for grain handling violations after an employee was fatally engulfed in a grain bin at the company’s Fremont facility. The company was cited for seven repeat and 10 serious safety and health violations involving hazards associated with grain handling, falls, respiratory protection, powered industrial trucks and electrical safety. It was placed in the SVEP.

Pennsylvania

  • In response to a complaint, Dollar Tree Stores in Bethlehem was cited for exit and storage hazards and faces $296,861 in penalties.

Wisconsin

  • Dollar Tree Stores was cited for exit, storage, and fire hazards at its Marinette location. The national discount retailer faces $477,089 in penalties.

For additional information.


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

OSHA watch

NEP to reduce or eliminate worker exposure to silica revised

Effective Feb. 4, the National Emphasis Program (NEP) on respirable crystalline silica for general industry, maritime and construction to “identify and reduce or eliminate” silica-related hazards was revised.

Significant changes include:

  • Enforcement of the standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction. Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016).
  • Updated list of target industries, listed by North American Industry Classification System (NAICS) codes.
  • For inspection procedures, compliance safety and health officers (CSHOs) are referred to current enforcement guidance for the Respirable Crystalline Silica Standards.
  • State Plan participation in this NEP has been made mandatory.
  • Area and Regional Offices shall comply with this NEP, but they are not required to develop and implement corresponding Local Emphasis Programs (LEPs) or Regional Emphasis Programs (REPs).
  • Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
  • Area Offices are no longer required to send abatement verification to the National Office.

Low hazards industry list updated

The list of low-hazard industries used to determine whether small-business employers are exempt from programmed safety inspections has been updated. Employers in these industries that employ 10 or fewer employees are exempt from programmed safety inspections. The appropriations language contains exceptions for inspections stemming from fatalities, the hospitalizations of two or more employees, imminent danger situations, employee complaints, and health hazards, among other situations.

National Emphasis Program (NEP) on Amputation extended to manufacturing industries in Pennsylvania, Delaware and West Virginia

The NEP on amputations will target industrial and manufacturing workplaces in Pennsylvania, Delaware, and West Virginia where it’s been determined that unguarded or improperly guarded machinery and equipment played a role in employee injuries. A concerted education and prevention effort will also be made to raise awareness. NEP enforcement activities will begin after March 10, 2020, and will remain in effect until the program is cancelled.

New hazard bulletin: grease traps

The new bulletin provides information on how to properly cover grease traps to prevent workers from tripping or falling into them.

Technical corrections and amendments to 27 standards

According to a final rule published in the Feb. 18 Federal Register, the corrections are to 29 CFR 1904 (recording and reporting occupational injuries and illnesses), 1910 (general industry), 1915 and 1918 (maritime), and 1926 (construction).

National stand-up for grain safety week

The National Stand-Up for Grain Safety Week will take place April 13-20.

New webpage to observe 50th anniversary

A new webpage marks the 50th anniversary of the Occupational Safety and Health Act of 1970. Visit www.osha.gov/osha50 to find 50th anniversary events.

Cal OSHA Guidance on requirements to protect health care workers from 2019 novel coronavirus

The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

Cal OSHA – Employee access to employer’s Injury and Illness Prevention Plan

The Occupational Safety and Health Standards Board (“Standards Board”) approved a rule allowing employee access to their employer’s Injury and Illness Prevention Plan within five days of a request, effective January 1, 2021.

 

Recent fines and awards

Florida

  • The U.S. District Court for the Middle District, Fort Myers Division, sentenced Stalin Rene Barahona, former owner of the now-dissolved SB Framing Services Inc. in Naples, to 30 days in prison. Barahona pleaded guilty to one count of willfully violating federal fall protection standards.

Georgia

  • Pearson Farms LLC was cited for safety violations after an employee suffered fatal injuries at the farm’s post-harvest operations facility in Fort Valley. The employee, who was performing maintenance on a conveyor system, was caught between the load on a forklift and a metal railing. The farm faces $128,004 in penalties.
  • Garick LLC, operating as Smith Garden Products, was cited for exposing employees to safety hazards at the Cumming facility. The manufacturer of specialty mulch products faces $148,867 in penalties. The inspection was conducted in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

Michigan

  • Dearborn Heights School District violated whistleblower statutes by unjustly disciplining, publicly discrediting, and terminating an employee who reported unsafe working conditions to federal and state agencies. The school district was ordered to reinstate the employee and pay a total of $102,905.78 in back wages, damages and other compensation.

Missouri

  • Royal Oak Enterprises was cited for exposing employees to multiple safety and health hazards at company facilities in Branson and Summersville. The charcoal manufacturer faces $339,702 in penalties.

New York

  • Nonni’s Foods LLC was cited for exposing employees to falls and other hazards at the Ferndale facility. Inspected after an employee fell and was hospitalized, inspectors discovered that the employer instructed employees to retrieve stored material by standing on the forks of a forklift that elevated them to a storage area atop a break room, which did not have guardrails. The manufacturer of premium cookies faces $221,257 in penalties.

Pennsylvania

  • Cleveland Brothers Inc., doing business as CB HYMAC, was cited for exposing workers to hexavalent chromium fumes and other safety hazards at the company’s shop in Camp Hill. The company, which provides hydraulic service and repair, machining and chroming services, was cited for one willful violation and 18 serious and two other-than-serious citations, totaling $280,874 in penalties.
  • CLF Construction Inc. and Toll Brothers Inc. were cited for exposing employees to fall hazards after a CLF employee suffered fatal injuries in a fall at a worksite in Media. Proposed penalties are $170,560 for Philadelphia-based subcontractor CLF Construction, and $74,217 for Horsham-based general contractor Toll Brothers.

For additional information.

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

Study: Safety management in the construction industry 2020

SourceDodge Data & Analytics, 2020

Findings: The report examines safety management in construction. Key findings include:

  • Jobsite workers and supervisors dominate the four factors selected by the highest percentage of contractors as essential aspects of a world-class safety program: jobsite worker involvement (84%), strong safety leadership abilities in supervisors (83%), regular safety meetings with jobsite workers and supervisors (82%) and ongoing access to safety training for supervisors and jobsite workers (77%).
  • The most popular safety policies are the site-specific ones, including creating site-specific safety and health plans and training programs for all employees and subcontractors. However, there is room for wider adoption of these measures, especially among small contractors (fewer than 20 employees).
  • While most contractors (66% or more) encourage workers to react to and report hazards onsite, far fewer ask workers for input on safety conditions (50%) or involve workers in safety planning (39%).
  • Toolbox talks remain the most effective way to communicate safety messages and provide information on tools, practices, and materials.
  • Contractors still expect to increase their use of online training in the next few years, but, surprisingly, a lower percentage reported using it than in 2017.

Takeaway: While involving jobsite worksite workers has topped the list of essential aspects of a world-class safety program since 2015, this report shows that strong safety leadership by supervisors and regular safety meetings between jobsite workers and supervisors are also essential. The study reveals more opportunities to engage jobsite workers as well as opportunities to strengthen the training of supervisors.

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

NSC report addresses how existing technologies can save lives and reduce serious injuries

Although workplace injuries are trending down, workplace fatalities are rising. While a fatality may seem like an impossibility at your workplace, 5,250 workers died on the job in 2018 – on average, more than 100 a week or more than 14 deaths every day. The worst part is that most of these deaths were preventable. Not only is a fatality a tragedy, but it also can have a long-lasting effect on the emotional health, productivity, and attitude of the workforce.

In its first Work to Zero research report, Safety Technology 2020: Mapping Technology Solutions for Reducing Serious Injuries and Fatalities in the Workplace, the National Safety Council (NSC) looks at 18 different non-roadway, hazardous situations in which workers are most likely to die and provides anywhere from five to eight potential technology solutions for each situation.

The top four hazardous situations and corresponding technologies identified in the report include:

  • Work at height: This includes deaths resulting from falling to a lower level, falling objects, and injury from the sudden arrest of a lifeline. Contributing to these risks are worker behavioral failures, leadership failure, and scaffolding/platform failure. Top technology solutions include mobile anchor points, aerial lifts and platforms, and self-retracting lines.
  • Workplace violence: This includes deaths resulting from intentional physical violence to a colleague, weapon violence, and violence due to robbery. Contributing to these risks are lack of workplace awareness, lack of training or supervision, and lack of security measures. Top technology solutions include real-time response management mobile apps, video cameras, and wearable or mobile-app based panic buttons.
  • Repair and maintenance: This includes deaths resulting from machine energization, being struck by machinery, or being entangled in machinery. Contributing to these risks are lack of training or supervision, fatigue, and machinery malfunction. Top technology solutions include machinery cutoff light curtains, power management systems, and permit to work technologies.
  • Construction and Installation: This includes falls to a lower level, control of energy, and electrocution. Contributing to these risks are leadership failure, lack of training, and lack of workplace awareness. Top technology solutions are VR and digital training, proximity sensors, and fall protection kits.

Other hazardous situations addressed in the report are logging equipment operation, tending a retail establishment, electrical work, emergency response, vehicle-pedestrian interactions, process safety operations, cleaning, loading and unloading, confined space entry, inspections, heavy equipment operation, excavation, machinery operation, and hot work.

Download report.

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

Study: Demand conditions and worker safety: evidence from price shocks in mining

SourceYale Insights

Findings: The study examines the relationship between demand and safety. While it’s often speculated that higher demand could lead to improved profits and more investment in safety, the authors found that it incentivized firms to focus on production over safety. “In economic terms, the opportunity cost of focusing on safety – that is, the potential profits lost – goes up when demand is higher. And that creates a second force counteracting the greater ability to invest in safety.”

The research is based on the mineral mining industry in the US, where accident reporting is carefully monitored and the global price reflects demand. Researchers found that a 1% increase in price led to an increase of .15% in serious injuries and mortality – evidence supporting the opportunity cost hypothesis. Records from the mine inspections provided even starker evidence that high demand leads mines to prioritize production over safety. A 1% increase in price led to a .13% increase in violations of health and safety regulations; many deemed from a negligent or willful act by the employer.

Takeaway: For years, safety and production were viewed as competitors suggesting workers and managers had to choose whether to work safely or get the job done quickly at any cost. Smart employers ingrain safety into production by treating it as an integral part of the systems and processes and this relationship is not compromised when production pressures intensify. If there’s a race to beat the clock, there are no winners – injuries and losses inevitably occur.

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

Legal Corner

Workers’ Compensation

Privette doctrine protects film studio from personal liability suit – California

In Castro v. ABC Studios Inc., ABC contracted with the owner of a gas station to film a TV show and also hired Executive Assurance (EA) to provide security for the property. On the side of the property was a metal rolling gate weighing about 900 pounds that did not have stops, in violation of Cal OSHA. On the day of the filming, a security guard employed by EA attempted to stop the rolling gate from hitting a truck and the gate fell on her, causing serious injury.

The security guard filed suit against the landowners and ABC, asserting claims for premises liability and negligence. The Court of Appeal for the 2nd District upheld the finding of the lower court that the Privette (1993 decision in Privette v. Superior Court) doctrine applied. Subject to certain exceptions, the Privette doctrine bars employees of independent contractors from suing the hirer of the contractor for workplace injuries.

After ABC was dismissed from the action, a jury found the security guard sustained damages of $2,534,613. The jury allocated 72.5% of fault to the landowners and 27.5% of fault to EA.

Injuries incurred during employer-sponsored bowling event compensable – Florida

In Reynolds v. Anixter Power Solutions, the 1st District Court of Appeal overturned the denial of benefits to an employee who was injured while bowling with co-workers during an employer-sponsored event. While the employer argued the event was an excluded “recreational activity”, the court noted that the event took place during regular work hours and had, as one of its purposes, the discussion of business goals for the upcoming year. Although employees could decline the invitation, this was insufficient to prove the event was voluntary, particularly in light of the goal stated by the employer.

Daunting burden of proof for toxic exposure nixes claim – Florida

In City of Titusville v. Taylor, an appellate court overturned the award of benefits to a city employee who had spent several months working to clear a wooded area and was diagnosed with fungal meningitis. Although a specialist presented testimony that the workplace was the “most likely” source of the fungus, the law requires that occupational causation be proven by clear and convincing evidence. In noting that the employee had failed to meet his burden of proof, the appellate court lamented “the Herculean task created by the heightened burden of proof for toxic exposure claims,” but said this was a matter for the legislature, not the courts.

Stuntman’s estate awarded $8.6 million in civil suit – Georgia

A stuntman died in July 2017 while shooting a scene for the television show, The Walking Dead, in Senoia. While AMC Networks argued that the stuntman was an employee of Stalwart Films, the family argued that he was an independent contractor and the jury agreed. Jurors found AMC Networks’ entity, TWD 8, and its production company, Stalwart Films, negligent, but said AMC Networks was not liable.

Exclusive remedy does not bar class-action suit under Biometric Information Privacy Act – Illinois

In Treadwell v. Power Solutions Int’l, an employee’s putative class action against his employer alleged the use of a fingerprint timekeeping system violated the state Biometric Information Privacy Act (“BIPA”). The employee claimed he had been injured by the employer’s interfering with his right to control his biometric data and the employer argued that claims for monetary damages under BIPA are preempted by the exclusive remedy provisions of workers’ comp.

Since the employee had shown that the employer’s actions were intentional, a federal district court found that one of the exclusion provisions of exclusive remedy was met – the injury was not accidental. Further, the court noted that the damages alleged were not the sort contemplated to be compensable under the state’s workers’ comp statute.

Award for amputation insufficient – Indiana

In Senter v. Foremost Fabricators, a three-judge panel of the Court of Appeals unanimously reversed and remanded a Workers Compensation Board decision, finding that an award of $12,880 was insufficient for a worker who had to have her pinkie finger and part of her hand amputated. The court noted that the Board had read the statute too narrowly and that while she was not entitled to an award for the loss of her entire hand, the Board should have used its discretion to provide a partial award for what was amputated on her hand.

Third-party cannot offset for employer’s fault – Minnesota

In Fish v. Ramler Trucking, an employee suffered injuries while helping to load a concrete beam onto a truck being operated by an employee of another company, Ramler Trucking Inc. He received workers’ comp benefits from his employer and filed a common-law negligence claim against Ramler. A jury allocated 5% of the fault to the employee, 75% to his employer and 20% to Ramler.

Ramler argued that its liability should be limited to its 20% fault. The case made its way to the state Supreme Court, which ruled a third-party tortfeasor’s liability to an injured employee could not be reduced based on an employer’s share of the blame. An employer liable to an injured employee under the Workers’ Compensation Act and a third party liable in tort to the employee do not have common liability, whether joint or several.The benefit was limited to a credit in the amount of the workers’ compensation benefits paid to the injured employee by the employer.

High court says employer entitled to credit for amount paid in vacated settlement – Minnesota

In Block v. Exterior Remodelers Inc., an employee received a $40,000 settlement for a back injury and continuation of medical benefits. Several years later, he experienced pain related to the old injury and required further surgery. His petition to vacate the settlement was granted, but there was a question whether the employer was entitled to a credit for the $40,000 already paid.

The Supreme Court noted the settlement was done properly and an award may be set aside later if the WCCA determines that there is cause to vacate the settlement.

Authorized medical treatment still applies to out-of-state care – Nebraska

In Rogers v. Jack’s Supper Club, a worker injured her back and settled her claim, with the employer agreeing to pay for ongoing medical care. Her “Form 50” physician died and she continued treatment with the doctor’s colleague and received reimbursement. Later, when she moved to Florida the company suggested they agree to a pain management specialist, but she had already chosen one and sought reimbursement for the care she received. The company argued it was not responsible for the medical expenses since it had not approved the physician. Further, it presented evidence that she was being treated with an opioid cocktail, although this was not a factor in the legal determination. The worker argued since the designated physician had died and she moved out of state, she was free to choose her doctor.

While the compensation court approved reimbursement, the Supreme Court disagreed. A new Form 50 physician could be selected either with agreement of the employer or by bringing the matter to the attention of the compensation court.

IME testimony barred based on attempt to influence decision – New York

In Matter of Keller v. Cumberland Farms, an appellate court affirmed a decision by the state Board that precluded the admission of a medical report and testimony by an independent medical examiner (IME). The physician did not turn over to the Board a letter he received from the employee’s attorney before the medical examination and an intake form completed before the examination, which the court found to violate the law.

The worker alleged that he contracted bladder and kidney cancer from years of exposure to carcinogens while working as a diesel mechanic for the employer.

Court finds Workers’ Compensation Board’s 8-page brief limitation unreasonable – New York

In Matter of Daniels v. City of Rochester, an appellate court found that the regulation that authorizes the Workers’ Compensation Board to dismiss an application for review when a brief is longer than eight pages without an adequate explanation is unreasonable,

Proximity of termination to injury claim doesn’t mean retaliation – New York

In Matter of Peterec-Tolino v. Five Star Electric Corp., a three-judge panel of the Supreme Court affirmed a Board’s determination that an electrician was fired about one month after an injury claim for legitimate business actions. The employer had been implementing a furlough replacement program that involved laying off approximately 10 percent of its electricians and had emailed his supervisor several months before the injury suggesting he be laid off for sub-standard performance. The employee also acknowledged that prior to his injury, he was told by an employer’s representative that the employer had contacted his union looking for other qualified workers to replace him.

Surveillance nixes continuation of benefits after 18 years – Pennsylvania

In Jones v. Workers Compensation Appeals Board, a maintenance custodian for the Southeastern Pennsylvania Transportation Authority was seriously injured in 2001. The employer attempted to terminate benefits in 2015 but was denied. In 2018, the employer tried again, submitting surveillance showing the employee, a Jehovah’s Witness, pulling a large suitcase and setting up a display of pamphlets, as well as standing on the street corner and gesturing with his arms and hands without restriction, and other activities involving lifting heavy objects.

In light of the surveillance, the workers compensation judge rejected the employee’s physician’s testimony that his condition demanded restrictions of no lifting over 10 to 15 pounds, no overhead work, no constant turning of the neck, no repetitive use of the arms, and no more than four hours of work per day. A three-judge panel of the Commonwealth Court agreed that he had fully recovered from his injuries.

Two conditions must be proved for benefits – Virginia

In Sorour v. Avalon Transp., the Court of Appeals affirmed the Commission’s denial of a limousine driver’s claim for benefits following a mysterious, one-vehicle accident that occurred while the driver was “on the clock.” While the court noted that the driver had proven his injuries occurred in the scope of his employment, he had not proven that his injuries arose out of his employment.

At the time of the accident, the driver was driving in a company vehicle to the company’s office at the request of his manager and he hit a guardrail on the exit ramp. The driver failed to prove how the accident occurred and, therefore, he did not establish the causal connection between his injury and the conditions under which his employer required the work to be performed.

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