Legal Corner

ADA 
Trucking firm settles suit over pre-employment screenings

Greeley, Colorado-based JBS Carriers Inc., which is the transportation affiliate of multinational meat processor JBS USA Holdings Inc., contracted with a third-party administrator, Denver-based ErgoMed Systems, to administer pre-employment screenings. The EEOC found that all applicants were subjected to a medical history questionnaire, a physical examination and nine physical abilities tests, and if an applicant failed any one of the tests, ErgoMed sent a negative job recommendation to JBS, which withdrew conditional job offers based on its recommendations.

The EEOC alleged this process unlawfully screened out people with disabilities and reached a $250,000 settlement with JBS. Under terms of the settlement, JBS will not contract with ErgoMed for three years and not implement any physical or medical screening for conditional hires apart from the DOT medical certification and urine analysis, among other provisions.

Perceived disability sufficient to reinstate suit

In Jonathan C. Baum v. Metro Restoration Services, an employee who worked as a scheduler for Louisville, Kentucky-based Metro Restoration Services Inc., began having heart problems and occasionally missed work for medical concerns. After a severe weather hit in 2015, he worked remotely to coordinate crews. He was fired a week later and the company’s owner told him it was because of his health issues and doctors’ appointments.

He filed suit, charging he was fired both because he was disabled and because the company regarded him as disabled. A lower court dismissed the case because he did not present an expert witness, but an appellate court found a jury could find that Metro fired him because the owner thought he was disabled, and reinstated the case.

Workers’ Compensation 
Widow loses civil suit based on “power press” exception to exclusive remedy – California

In Ochoa v. Setton Pistachio of Terra Bella Inc., a widow of a man who died when another worker accidentally started the machine he was maintaining filed a wrongful death suit, arguing the machine was a power press that, under certain conditions, can be exempt from exclusive remedy. The court agreed with the defendants that the machine in question was a conveyor-style “auger” and not a press that used a die. A product liability claim was also rejected.

Sawmill pays $375,000 in settlement of civil suit related to workers’ death – California

Morgan Hill-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, was sued by the district attorney following the death of a millworker, who died in a bark conveyor that the employees regularly walked on while they were unjamming it. The DA’s office investigation found a culture of production over safety at the mill and that the sawmill and its two other facilities in Sonoma County did not have written procedures for employees to work on, unjam or clean machinery and equipment.

Secondary treatment issues clarified – California

In a panel decision, Pena v. Aqua Systems, it was clarified that secondary treatment requests do not have to be initiated by the PTP and that selection of a secondary treater is not subject to Utilization Review (UR) and, therefore, does not require a Request for Authorization (RFA). Failure to promptly respond to and approve secondary treatment requests is likely to result in a penalty assessment.

Six-month limit on mental injuries upheld – Florida

In Kneer v. Lincare & Travelers Ins., an appellate court ruled that an employee was not eligible for benefits for psychiatric injuries because they occurred more than a year after he had reached MMI on his back injury. The court said the claim for temporary benefits for the mental condition was untimely because there is a six-month limitation for temporary benefits for psychiatric injuries (which follow a physical injury).

Remote workers beware: trip over dog not compensable – Florida

In a 12-2 decision, Sedgwick CMS v. Valcourt-Williams, an appeals court reversed the decision of a workers’ compensation judge. Working in Arizona, a home-based workers’ comp claims adjuster tripped over one of her two dogs, causing her to fall and sustain injuries to her knee, hip and shoulder as she was getting coffee in her kitchen. The court noted that there are limitations to the “arising out of” rule when risks unrelated to work lead to the injury. In this case, her non-employment life (her dog, her kitchen, reaching for a coffee cup) caused the accident, not her employment.

“One Day Rest in Seven” can’t circumvent exclusive remedy – Illinois

In Webster v. FirstExpress, Inc., a federal district court held that the state’s “One Day Rest in Seven Act” may not be used to circumvent the exclusive remedy of the Workers’ Compensation Act. An employee of a tire service company was killed in a collision with a vehicle owned by FirstExpress, Inc. It was argued that the worker had been required to work mandatory overtime and failed to get a full day of rest as called for in the statute. However, the court ruled that the employer was immune from tort liability because its actions did not rise to the level of “specific intent” to harm.

High court clarifies application of treatment guidelines – Minnesota

In Johnson v. Darchuks Fabrication, an employee was diagnosed with complex regional pain syndrome following a work-related incident. As part of the settlement, the company paid for ongoing medical expenses, which included over ten years of opioids. The employee was asked to go through a fourth IME, and for the first time, the medical examiner expressed doubt about the diagnosis. As a result, the company notified the employee it was discontinuing coverage for the medication. It argued the complex regional pain syndrome had been resolved and that the long-term opioid use did not comply with the workers’ compensation treatment parameters.

The case found its way to the Supreme Court and the company argued that the treatment parameters applied in this case. The court agreed, noting the treatment parameters do not apply when liability for the benefits has been denied, but a challenge to the reasonableness and necessity of treatment is not a denial of liability. It ordered the case remanded for further proceedings.

PPD award for fall in employer’s parking garage affirmed – Missouri

In McDowell v. St. Luke’s Hosp., an appellate court affirmed a decision by the state’s Labor and Industrial Relations Commission awarding workers’ compensation benefits to an employee who fell while bringing her belongings from the garage to her work station. While the state statute generally means benefits are denied when the hazard or risk is one to which the worker would have been “equally exposed outside of and unrelated to the employment in normal nonemployment life,” the court found that her fall was the result of her need to pull and maneuver a two-wheeled cart containing work-related supplies through a congested entryway and, therefore, was compensable. She did not face such a hazard in her non-employment life.

The worker, who had worked for the hospital for 45 years, had undergone a hip replacement and used a cane. The hospital had provided her with the two-wheeled cart to transport her belongings from the garage during her recovery.

No survivor benefits for daughter of deputy killed in car crash while exchanging shift information on his cell phone – Nebraska

In Coughlin v County of Colfax, a deputy sheriff was driving home and on his cell phone exchanging shift information with another officer who just came on duty when his vehicle hit a deer’s carcass. He lost control of the car, collided with another vehicle driving in the opposite lane of traffic, and died.

His brother filed a workers’ comp claim, which was denied based on the going and coming rule. The course and scope of employment had not been expanded by the cell phone conversation, in spite of its work-relatedness. It was determined that he was in his personal vehicle and off duty at the time of the accident.

An appellate court considered whether the cell phone communication was an employer-created condition that rendered the going and coming rule inapplicable. It found that although the Department expected the deputy to exchange shift-change information, it did not prescribe any one way of doing so and, in fact, had a cellphone policy that prohibited using a cell phone while driving a county-owned vehicle. The denial was affirmed.

Appellate court overturns decision to disqualify worker from future benefits – New York

In Matter of Persons v Halmar Intl, an appellate court overturned a decision by the Workers’ Compensation Board that disqualified an injured construction laborer from receiving future wage replacement benefits because he made false statements about his physical condition in violation of the law. The appellate court found that the Board’s findings based on video footage of his work as a volunteer firefighter and another video were inaccurate and could not be ascertained without further medical testimony. Further, the worker had acknowledged and disclosed his work as a volunteer firefighter.

The court concluded, “Simply put, our review of the record reflects that the Board’s decision [was] not supported by substantial evidence as it [was] based upon speculation, surmise and mischaracterizations.”

Law barring undocumented workers from additional benefits upheld by high court – Tennessee

The Supreme Court ruled that a state statute limiting the benefits available to a worker without legal authorization to work in the United States is not pre-empted by federal immigration law. The case, Salvador Sandoval V Mark Williamson, involved an undocumented worker for Tennessee Steel Structure who was injured on the job and received PPD benefits. He did not return to work after benefits ended and filed for additional benefits, but state law precludes benefits for anyone who is not eligible or authorized to work legally in the US.

The worker argued the law was unconstitutional because it was pre-empted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court concurred with the Special Workers’ Compensation Appeals Panel that the law does not conflict with any provision of the IRCA.

Attempt to guide hand truck does not constitute “lifting” in violation of safety rules – Virginia

In Snelling Staffing/Chesapeake & Ace Am. Ins. Co. v. Edwards, the employer argued that an employee violated a known rule that prohibited lifting more than 40 pounds without assistance when he was injured. The worker and a co-worker stacked three boxes of computers, each weighing approximately 120 pounds, on a hand truck. When the worker attempted to pull back on the truck, the weight shifted and he tried to steady it with his leg, injuring his back.

The appellate court agreed with the Commission that the employee’s actions did not constitute “lifting” in violation of employer’s safety rule.

Police officer’s slip on the grass not compensable – Virginia

In Conner v. City of Danville, a police officer was part of a surveillance team at a duplex and was interviewing a homicide suspect outside with a colleague. Rain turned to hail and a tornado was moving through, so they decided to seek shelter. She twisted her knee when she slipped on the grass and almost fell and reported the injury. Through treatment, it was found that three discs in her back had apparently been affected and that surgery was needed.

Her comp claim was denied by the deputy commissioner and affirmed by the Commission and an appellate court because her risk of exposure to the tornado was not increased because of her employment. The interview was suspended while they attempted to get out of the weather, which is an act of God. Therefore, this was not a work-related injury.

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

OSHA watch

Anti-retaliation provisions of electronic record-keeping rule survives employer challenge

An Occupational Safety and Health Review Commission (OSHRC) administrative law judge’s decision to reject two defenses offered by the U.S. Postal Service to a citation preserves the controversial anti-retaliation provisions under its electronic record-keeping rule. The USPS allegedly issued a seven-day working suspension to a carrier because he reported a work-related injury. The USPS argued that the alleged standard and/or penalties were invalid because they were beyond the legal power or authority of OSHA and/or were arbitrary and capricious.

Process Safety Management standard extended beyond hazardous chemicals in ruling

Legal experts warn that a recent OSHRC ruling regarding safety violations in a deadly oil refinery explosion in 2012 could have wider implications for companies dealing with highly hazardous chemicals. OSHRC affirmed 12 violations of Process Safety Management standard by Wynnewood Refining Co, which argued the PSM was never intended to include processes that do not manage such chemicals – such as the steam boiler involved.

Prior to this ruling, it was widely understood that utilities unrelated to the manufacturing process were not included in the requirements for PSM. Experts say it is unclear how far the standard extends now.

Social media campaign to educate young workers

#MySafeSummerJob, a social media campaign to educate young workers about their rights in the workplace, how to speak up about dangerous work conditions, and how to protect themselves on the job, was launched in concert with several worker safety organizations. From April 15 through May 17 outreach will promote safety among young workers. Check out materials and ideas at the #MySafeSummerJob website.

Regional construction safety campaign shifts focus to falls

In concert with the Mid-Atlantic Construction Safety Council, a four-month campaign was launched to address the four leading causes of fatal injuries in construction. In March, the campaign focused on electrical hazards, and during April the emphasis was on struck-by hazards. This month is falls, and caught-in / between hazards will be the focus in June. The campaign serves employers and employees in Delaware, the District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia.

Email OSHA-Focus4-Region3@dol.gov for more information.

OSHRC finalizes revisions to its procedural rules

The OSHRC has finalized what it calls “comprehensive” revisions to its procedural rules, in part to reflect technological advances. Slated to take effect June 10, the changes include mandatory electronic filing for “represented” parties and a new method intended to streamline calculating time periods.

Proposal to watch: joint employer revisions

The Department of Labor announced a proposal to “revise and clarify” the issue of joint employers. The department is proposing a four-factor test “based on well-established precedent” that would consider whether the potential joint employer actually exercises the power to hire or fire the employee; supervise and control the employee’s work schedules or conditions of employment; determine the employee’s rate and method of payment; and maintain the employee’s employment records.

The proposal could differ from the interpretations put forth by other federal agencies and would not nullify regulations promulgated by individual states that have different standards.

The public has 60 days from April 1 to comment on the proposal.

Webpage on radiation emergency preparedness and response launched

A webpage intended to educate workers about how to protect themselves in radiation-related situations ranging from a small, isolated spill in a laboratory to a potentially catastrophic release at a nuclear facility is now live. The Radiation Emergency Preparedness and Response webpage provides resources on health and safety planning, medical monitoring and dosimetry, and other relevant topics for workers “who may be impacted by radiation emergencies” or “who may be involved in emergency response operations or related activities.”

Cal/OSHA proposing to re-adopt emergency rules for e-filing injury reports

Emergency rules were adopted Nov. 1, 2018 and the re-adoption would give additional time to proceed with regular rulemaking on a permanent basis. In addition to requiring electronic reporting for companies with at least 250 workers, the rules require businesses with 20 to 249 employees in industries such as construction, manufacturing and agriculture to electronically file injury logs.

A notice for proposed permanent rules is expected to be published by May 10.

MIOSHA launches emphasis program on roadway accident

The state emphasis program on roadway accidents will run through December 31, 2019 and is intended to increase the priority of inspections related to construction roadway safety and initiate inspections upon observing a roadway project with workers present.

Enforcement notes

California

  • Cal North Farm Labor Inc., a farm labor contractor and Crain Walnut Shelling Inc. face more than $100,000 combined in proposed penalties after a worker was fatally crushed by a bin dumper at a walnut processing and packing facility in Los Molinos.
  • Staffing agency Priority Workforce Inc. and JSL Foods Inc., a maker and distributor of pasta and baked goods face more than $300,000 in fines for serious citations after a temporary worker lost two fingers cleaning machinery at a Los Angeles food manufacturing facility.
  • Accurate Comfort Systems Inc. received four citations and faces $75,750 in penalties after a worker suffered serious injuries in a fall from a ladder on a 12-foot-high work area.

Florida

  • Inspected as part of the Regional Emphasis Program on Falls in Construction, Florida Roofing Experts, Inc. faces $132,598 in fines after inspectors observed workers performing residential roofing activities without fall protection.

Georgia

  • Investigated under the National Emphasis Program on Trenching and Excavation, Riverside Military Academy Inc., a military college preparatory academy in Gainesville, was cited for exposing employees to trenching hazards, faces $381,882 in penalties, and was placed in the Severe Violator Enforcement Program. Citations included allowing employees to work inside a trench without cave-in protection and a safe means to enter and exit the excavation, and failing to locate underground utilities prior to work.
  • Specialty chemical manufacturer, Plaze Aeroscience, operating as Plaze GA, was cited for exposing employees to fire and burn hazards at the company’s facility in Dalton and faces $107,164 in penalties.

Michigan

  • Mt. Clemens-based Powder Cote II received seven citations and faces $65,000 in penalties for failing to provide fall protection or guardrail systems, guard rotating shafts and machinery, and failing to control the startup of machinery during maintenance.

New York

  • Remington Arms, LLC, based in Madison, North Carolina was cited for 27 violations of workplace safety and health standards and faces $210,132 in penalties after a worker’s fingertip was amputated while using an unguarded metalworking machine at its Ilion manufacturing plant.

Pennsylvania

  • Framing contractor, Navy Contractors, Inc. was cited for willfully exposing employees to fall hazards at residential construction sites in Royersford, Collegeville, and Center Valley after inspections saw employees working without fall protection. The company faces $603,850 in penalties.
  • A jury in the U.S. District Court for the Eastern District has found that Lloyd Industries Inc., a manufacturing company based in Montgomeryville, and its owner William P. Lloyd unlawfully terminated two employees because of their involvement in a safety investigation. Damages will be determined in phase 2 of the trial.
  • A jury has concurred with the findings of a whistleblower investigation and awarded $40,000 for lost wages, pain and suffering, and punitive damages to a former employee of Fairmount Foundry Inc. The employee claimed that the Hamburg iron-casting company terminated him for reporting alleged safety and health hazards.
  • New Jersey contractor, Brutus Construction, Inc. was cited for exposing workers to fall hazards at a Souderton residential construction site. Inspectors saw employees working on roofs without fall protection and the company faces nearly $182,000 in penalties.

Wisconsin

  • A follow-up inspection revealed that Beloit-based Avid Pallet Services, LLC, failed to correct violations related to wood dust and respiratory hazards. The company faces penalties of $188,302.

For additional information.

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

Ten most dangerous jobs

Going by the sheer number of on-the-job deaths, the truck drivers and sales drivers classification was by far the most dangerous, accounting for nearly 1,000 (987) deaths in 2017. However, the chances of a fatality are much higher in specific industries when the fatal work injury rate, calculated per 100,000 full-time equivalent workers, is used. According to a recent report in EHS Today, the ten most dangerous jobs of 2019 are:

No. 1 – Fishers and related fishing workers

Moving up from number 2 to become the most dangerous profession, fishers and related fishing workers experienced 41 fatalities in 2017, an increase of almost 58% from 2016. The fatality rate was 99.7 per 100,000 full-time equivalent workers. Risks: drowning, struck by lightning, crushed by equipment.

No. 2 – Loggers

Falling from the most-dangerous profession to number 2, loggers experienced 55 fatalities, a drop of almost 65% from 91 fatalities in 2016 for a fatality rate of 84.3. Risks: falls, struck-by, dangerous tools such as chainsaws and axes.

No. 3 – Aircraft pilots and flight engineers

Pilots and flight engineers experienced 59 fatalities in 2017 for a fatality rate of 58.6, a drop from 2016. Risks: crashes.

No. 4 – Roofers

Roofers experienced 91 fatalities in 2017 for a fatality rate of 45.2, slightly lower than in 2016. Risks: falls, struck-by, and heat.

No. 5 – Refuse and recyclable material collectors

Refuse and recyclable material collectors experienced 30 fatalities in 2017 for a fatality rate of 35.0, very similar to 2016. Risks: dangerous machinery, crushed by equipment, struck-by, traffic accidents, struck by vehicle.

No. 6 – Structural iron and steel workers

Steel and ironworkers experienced 14 fatalities in 2017 for a fatality rate of 33.4, a slight decrease from 2016. Risks: falls, struck-by, heat, crushed by materials.

No. 7 – Truck drivers and other drivers

Employees who drive for work – including truck drivers – experienced 987 fatalities in 2017 for a fatality rate of 26.8 out of 100,000 workers, which was higher than in 2016. Risks: traffic accidents, struck by vehicle, other drivers, construction zones, sleep deprivation, texting/talking while driving.

No. 8 – Farmers, ranchers, and agricultural managers

Agricultural workers experienced 258 fatalities in 2017 for a fatality rate of 24.0 out of 100,000 workers, very similar to 2016. Risks: dangerous machinery, chemicals, heat.

No. 9 – Grounds maintenance workers

Grounds maintenance workers experienced 244 fatalities in 2017 for a fatality rate of 21.0, a decline from 2016. Risks: heat, cold, noise, chemical exposure, ergonomics-related issues, machinery.

No. 10 – Electrical power-line installers and repairers

New to the list, electrical power-line installers and repairers experienced 26 fatalities for a fatality rate of 18.7. Risks: electrocution, falls to a lower level, transportation incidents.

Supervisors of construction workers (which ranked at #9 last year), fell off the list of the top 10.

Other key findings:

  • There were a total of 5,147 fatal work injuries recorded in the United States in 2017, down slightly from the 5,190 that were registered in 2016.
  • Fatal falls were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries (CFOI), accounting for 887 (17 percent) worker deaths.
  • Transportation incidents remained the most frequent fatal event in 2017 with 2,077 (40 percent) occupational fatalities.
  • Violence and other injuries by persons or animals decreased 7 percent in 2017 with homicides and suicides decreasing by 8 percent and 5 percent, respectively.
  • Unintentional overdoses due to non-medical use of drugs or alcohol while at work increased 25 percent from 217 in 2016 to 272 in 2017. This was the fifth consecutive year in which unintentional workplace overdose deaths have increased by at least 25 percent.
  • Fatal occupational injuries involving confined spaces rose 15 percent to 166 in 2017 from 144 in 2016.
  • Crane-related workplace fatalities fell to their lowest level ever recorded in CFOI, 33 deaths in 2017.
  • Fifteen percent of the fatally-injured workers in 2017 were age 65 or over – a series high. In 1992, the first year CFOI published national data, that figure was 8 percent. These workers also had a higher fatality rate than other age groups in 2017.

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

Employee behavior and heat-related illness: 5 problem-solutions

Educational campaigns and accessible resources coupled with technology and meteorology precision have made it possible for employers to provide site-specific weather information and the proper resources and training for employees to combat the risk of heat exposures. Tools such as OSHA’s heat index app calculate the heat index for the worksite, display a risk level for workers, and provide reminders about the protective measures that should be taken at that risk level.

Yet, every year thousands of workers suffer from heat illness and some die. Why?

In some cases, it’s organizational factors such as indifferent or callous supervision, poor workplace conditions, and unrealistic production expectations, which reflect the company’s overarching culture. Yet, many employers are proactive and do an excellent job in training employees and implementing procedures to prevent heat stress that aren’t followed by some employees.

Here are five problem-solutions related to employee behavior and heat stress:

  1. Problem: Risk perceptionSome employees simply underestimate how serious heat illness can be. They’ve worked in the heat before without incident – been there, done that – can’t happen to them. Moreover, the symptoms of heat illness can be subtle and misinterpreted as mere annoyances rather than signs of a serious health issue.

    That’s why the American Society of Safety Engineers calls heat the “unseen danger” at construction sites. If a heat rash appears or a cramp develops, workers can dismiss them as an inconvenience and continue working without applying a powder or getting water or a sports drink. Even signs of heat exhaustion such as thirst, heavy sweating, headache, nausea, dizziness, and irritability can be interpreted as being tired from working in the sun.

    Potential solutions: Make rest and shade breaks mandatory, pre-shift reminders about the symptoms of heat stress, foster a ‘stop and think’ culture, buddy system, make sure employees are aware of the worst-case scenario, and use testimonials and share previous incidents to heighten awareness.

  2. Problem: Don’t understand hydrationDehydration not only leads to heat stress but also impairs visual motor tracking, short-term memory, and concentration leading to work-related accidents. Most workers know that staying hydrated is critical when working in hot and humid environments.

    But “staying hydrated” means different things to different people. To some, it means waiting until they are thirsty to drink. To others, it means grabbing an ice-cold soda loaded with sugar.

    As a general guideline, the recommended amount of water intake is one quart per hour (ideally one cup every 15 minutes) of active work for the average adult. However, every worker is different. Workers with underlying medical conditions or those who are new to the work environment have unique hydration requirements.

    Potential solutions: Have water easily and readily available, provide reusable water bottles, enforce breaks, educate with detailed information about how to hydrate (frequency, water vs.sports drinks, predisposing medical factors, effects of diet, drinking alcohol) and the symptoms of dehydration, and issue frequent reminders and weather alerts throughout the day.

  3. Problem: Inexperienced workersSummer work means many young and inexperienced workers and OSHA statistics prove that these workers are particularly vulnerable to heat-related illnesses. Whether it’s lack of knowledge, an immature attitude, fear, a desire to fit in and prove their worth, or an invincible mindset, some young workers try to side-step an acclimatization program and keep up with more seasoned workers with deadly results.

    Potential solutions: Have a mentoring program, tailor training, establish consequences for failure to follow rules, and consistently interact with workers to gauge how they’re feeling.

  4. Problem: Heat illness mythsEven well-trained employees can fall back on myths, misconceptions, and inaccuracies in the “heat” of the moment. Some common myths are:
    • When you’re having heat stroke, you don’t sweat
    • Acclimatization will protect you during a heat wave
    • Salt tablets are a good way to restore electrolytes lost during sweating
    • Off-duty drinking and diet do not adversely affect the ability to manage job-related heat
    • Medications/health conditions will not affect the ability to work safely in heat

    Potential solutions: To debunk myths, employees need to understand them. Make them a part of ongoing training.

  5. Problem: Bantering and sense of controlBanter is commonplace in many physically demanding jobs. Good-natured joshing and jibing can reduce stress and help to build strong teams. Yet, when bantering moves to rough-and-tumble horseplay or bullying it can lead to dire consequences. When workers are made to feel that needing a break is a sign of weakness – “don’t be a wimp,” “man-up” – a critical line is crossed.

    Potential solutions: How workers perceive the ease or consequences of horseplay or bullying is a key factor. All organizations should make clear what is acceptable and set clear boundaries. Importantly, drill home the message that workers are responsible for each other’s safety and make sure supervisors walk the talk.

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

Understanding the drivers of serious injuries by industry Liberty Mutual Workplace Safety Index

Produced annually, the Liberty Mutual 2019 Workplace Safety Index identifies the leading causes of the most disabling non-fatal workplace injuries (resulting in more than five days of lost time) and ranks them by total Workers’ Compensation costs. While the findings have always provided insight into critical risk areas so businesses can better allocate safety resources, this year’s report delves deeper by reporting the causes and costs of the most serious workplace injuries by eight industries.

U.S. companies lose more than $1 billion per week due to workplace injuries, according to the report that is based on data from Liberty Mutual, the U.S. Bureau of Labor Statistics and the National Academy of Social Insurance. The top causes of the most serious workplace injuries have been stable over the past several years, with overexertion (lifting, pushing, pulling, holding, carrying) and falls from the same level topping the list. Here are the top ten causes and their costs:

  1. Overexertion involving outside sources. Cost: $13.1 billion
  2. Falls on the same floor level. Cost: $10.4 billion
  3. Struck by object or equipment including falling objects from above. Cost: $5.2 billion
  4. Falls to lower level from a ladder or platform. Cost: $4.9 billion
  5. Other exertions or bodily reactions from activities (crawling, reaching, bending, twisting, climbing, kneeling, or walking). Cost: $3.7 billion
  6. Roadway incidents involving motorized land vehicle. Cost: $2.7 billion
  7. Slip or trip without fall. Cost: $2.2 billion
  8. Caught in or compressed by equipment or object. Cost: $1.9 billion
  9. Repetitive motions involving microtasks, such as working on an assembly line. Cost: $1.63 billion
  10. Struck against object or equipment. Cost: $1.2 billion

Even when broken down by eight industry sectors, there was consistency with overexertion and falls on the same level in the top five causes for each of the sectors. Here are the industry results:

Construction – $9.87 billion in losses ($189.81 million a week)

  1. Falls to a lower level
  2. Struck by object or equipment
  3. Overexertion involving outside sources
  4. Falls on the same level
  5. Slip or trip without a fall

Professional and business services – $7.86 billion in losses ($151.15 million a week)

  1. Falls on the same level
  2. Overexertion involving outside sources
  3. Falls to a lower level
  4. Roadway incidents involving motorized land vehicle
  5. Struck by object or equipment

Manufacturing- $7.62 billion in losses ($146.54 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Struck by object or equipment
  4. Caught in or compressed by equipment or object
  5. Repetitive motions involving microtasks

Health care and social services – $5.17 billion in losses ($99.42 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Intentional injury by person
  4. Roadway incidents involving motorized land vehicle
  5. Other exertions or bodily reactions

Retail – $5.09 billion in losses ($97.88 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Struck by object or equipment
  4. Other exertions or bodily reactions
  5. Falls to a lower level

Transportation and warehousing – $4.37 billion in losses ($84.04 million a week)

  1. Overexertion involving outside sources
  2. Falls on the same level
  3. Roadway incidents involving motorized land vehicle
  4. Other exertions or bodily reactions
  5. Falls to a lower level

Wholesale – $4.04 billion in losses ($77.69 million a week)

  1. Overexertion involving outside sources
  2. Struck by object or equipment
  3. Falls to a lower level
  4. Falls on the same level
  5. Other exertions or bodily reactions

Leisure and hospitality – $3.46 billion in losses ($66.54 million a week)

  1. Falls on the same level
  2. Overexertion involving outside sources
  3. Struck by object or equipment
  4. Struck against object or equipment
  5. Other exertions or bodily reactions

While James Merendino, Vice President and General Manager at Liberty Mutual Insurance, acknowledges that efforts to improve safety need to be based on a specific employer’s operations and employees, he says there are three techniques that have proven successful in improving safety in a variety of industries.

  • Establish a strategic safety plan. This involves identifying the top safety risks facing the company and how they will be mitigated and managed. This includes existing risks, as well as integration of new technologies or procedures.
  • Set expectations. The commitment of senior management must be unwavering, consistent, and visible. It must be an integral part of the business plan for the company’s success.
  • Directly involve front line employees in the strategic safety program. This is an on-going process that benefits both the employer and employees. These are the people who do the work, are closest to the hazards, and know the shortcuts that can be taken.

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

PPE and women: 13 do’s and don’ts

The recent cancellation by NASA of the highly publicized first-ever all-woman spacewalk is a good reminder of the importance of proper fitting PPE. Even with extensive training on the ground, getting the right fit for a spacesuit in microgravity can be a challenge since the body changes slightly in space due to fluid shifts or spine elongation.

Only one suit for a medium-size torso, which is the size that best fits the two astronauts, is ready for use on the station. While the decision was made by one of the astronauts who thought a large-size suit would be fine, but after a spacewalk a week earlier decided the medium-size was a better fit, it was met by some with disbelief on Twitter. The number of women entering traditionally male-dominated fields continues to grow and many have encountered improperly fitting personal protective equipment (PPE) and personal protective clothing (PPC). (The two female astronauts were part of a class that had 50/50 gender representation.)

According to The Washington Post, “Across social media platforms, women told of giant overalls, wading boots that were the wrong size, oversize gloves that kept them from being nimble, a lack of bulletproof vests that accommodated their chest sizes and a dearth of petite-size personal protective equipment at construction sites.”

While there is increased awareness and significant strides have been made in PPE for women, the fact remains that most PPE was designed based on average male body measurements and it has only been in recent years that manufacturers have tailored PPE to women. When there are products specifically designed for women some worksites just don’t have them readily available.

The best practices of providing PPE for women are very similar to those for men. Here are 13 do’s and don’ts:

  • Don’t assume your PPE is appropriate for all of your employees. Find out what is and isn’t working by getting feedback from employees. Monitor the use and identify situations where it is not used when it should be.
  • Don’t ask women to wear PPE that is too big. It is not going to provide adequate protection and in some cases creates even more serious safety risks.
  • Don’t alter PPE. It should be certified to specific standards, and alterations beyond built-in adjustment features can make the garment no longer compliant – and unsafe.
  • Don’t subject women to derogatory remarks or disingenuous humor about how they look in PPE.
  • Don’t assume women are only concerned about “how it looks.”
  • Don’t criticize, ignore, or retaliate against employees who report ill-fitting PPE.
  • Don’t penalize employees who refuse to work when appropriate PPE is not available.
  • Do involve employees in the selection of PPE.
  • Do provide the same range of sizes for women as for men, and ensure suppliers have properly assessed the appropriateness of their equipment to women and men.
  • Do ensure employees try on several sizes or types of PPE before it is issued to ensure the best fit.
  • Do educate employees about why the PPE is to be worn and train how to properly use it.
  • Do make appropriate provisions for pregnant women.
  • Do get supervisor buy-in.

The gender pay gap is substantially less in many non-traditional jobs than in other professions, and training and apprenticeships present great opportunities for women. Yet, as noted in the Construction Productivity Blog, “recruitment bias, company cultures where harassment isn’t thoroughly addressed and even reasons as simple as tools and gear not made for women in mind, also all play a critical role into why more women aren’t considering building as a career.”

Attracting women to non-traditional fields can help industries deal with an acute labor shortage and have economic benefits. According to the Peterson Institute, construction companies that were in the top 25% in gender diversity of their workforce were 46% more likely to outperform their industry average. Providing the right PPE is another way companies can recruit and retain more female talent.

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

Understanding OSHA’s general duty clause

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

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

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

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

Heat-related hazards

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

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

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

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

Workplace violence

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

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

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

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

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

Occupational health and safety risks now top cost disruptor

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

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

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

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

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

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

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

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

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

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

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

OSHA watch

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

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

New bulletin for workers wearing devices containing lithium batteries

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

New video on ammonium nitrate emphasis program

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

Employers urged to prevent worker exposure to carbon monoxide

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

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

Alert to Nebraska employers: Increase in amputation injuries

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

Enforcement notes

California

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

Connecticut

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

Florida

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

Georgia

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

Massachusetts

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

Minnesota

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

Pennsylvania

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

Tennessee

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

For additional information.

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

Things you should know

Updated Workers’ Compensation Medicare Set-Aside Reference guide issued

The updated guide, version 2.9, addresses spinal cord stimulators and the inclusion of off-label prescription drugs, particularly Lyrica as well as updating Life Tables and examples of settlements not meeting The Centers for Medicare & Medicaid Services (CMS) review thresholds, but which would still require consideration of Medicare’s interests.

The NGHP User Guide was also updated and CMS will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals.

Some experts suggest that the changes are another indication that CMS intends to make Medicare Secondary Payer (MSP) enforcement a priority in 2019.

New app can help determine what’s allowed in MSAs

The CMS launched its “What’s Covered” app to give consumers more information about their Medicare benefits. It also can be a valuable assist for injured workers with MSAs.

Study: Most manufacturing workers experience fatigue

study by the American Society of Safety Professionals suggests that the automation of manufacturing processes may be contributing to worker fatigue, which was found in 58% of the workers studied. Fatigue monitoring, such as wearables that monitor heart rate, are a possible solution. The report also notes three interventions to help mitigate fatigue: posture variance, chemical supplements and rest breaks.

Work comp insurers cite top concerns

Every year for the past decade, the National Council on Compensation Insurance (NCCI) surveys carrier executives in the workers’ compensation industry to better understand their market perspectives, needs, and challenges. Learn what keeps them up at night.

New guidance for pain management in the age of the opioid epidemic

draft report from the Pain Management Best Practices Inter-Agency Task Force, which acts in an advisory capacity for the federal government, calls for individualized, patient-centered pain management. Public comments are welcome.

Study: Injured workers in the mining and construction industries and those in rural areas more likely to receive opioid prescriptions

study by the Workers Compensation Research Institute (WCRI) found 33% of injured workers employed in mining and 29% in construction received opioids for certain injuries and are more likely to receive higher doses and for longer time periods. The study also found that older workers were more likely to receive opioid prescriptions compared with younger workers, with 49% of injured workers age 49 or older receiving opioids compared to 42% of workers between the ages of 25 and 39.

Meanwhile, a higher percentage – 66% to 79% – of workers who sustained fractures, carpal tunnel and neurologic spine pain received at least one opioid prescription for pain relief. It’s postulated that those in rural areas receive more opioids because there are fewer pain management options available.

New video on performing tower modifications

new video from the National Association of Tower Erectors highlights the importance of understanding and following the proper sequence of performing tower modifications.

Injured Massachusetts teen workers lacked health and safety training: report

Nearly half of the teen workers in Massachusetts who were injured on the job between 2011 and 2015 said they did not receive health and safety training from their employer, according to a Massachusetts Department of Public Health annual report on teen worker safety. Four industries – accommodations and food service (37 percent), retail trade (19), health care and social assistance (11), and construction (4) – accounted for more than 70 percent of all work-related injuries involving teens in the state.

NIOSH releases resources on dampness and mold assessment

NIOSH recently introduced checklists to help employers assess damp areas and identify mold. The Dampness and Mold Assessment Tool has two versions – one for general buildings and one for schools – as well as a four-step assessment cycle.

CPWR releases alert, toolbox talk on lightning safety

Stressing the importance of lightning awareness while working outdoors, the Center for Construction Research and Training (CPWR) has published a hazard alert and toolbox talk addressing the topic.

State News

California

  • Division of Workers’ Compensation has updated its formulary for injured workers to include drugs to treat traumatic brain injury, effective Feb. 15
  • FMCSA granted a petition to pre-empt the state’s meal and rest break rules for commercial motor vehicle drivers

Florida

  • OSHA resumes normal enforcement activity following Hurricane Michael

Massachusetts

  • A new law applies OSHA standards to all public employees, including municipal workers and quasi-public agency workers

Michigan

Minnesota

  • New law recognizes post-traumatic stress disorder as a compensable condition for first responders

New York

  • Governor vetoed bill that would have regulated and permitted acupuncturists to treat injured workers in the state’s workers compensation
  • WC Board launches virtual hearing app, WCB VHC, which is free in the iOS App Store

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