OSHA watch

Proposed changes to recordkeeping rule

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

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

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

Consider screening workers for heat stress when index hits 85 degree

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

Free stickers on trenching safety offered

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

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

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

New publications

Updated webpage on avian influenza

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

Michigan OSHA clarifies requirements for eyewashes and safety showers

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

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

A fact sheet and poster is now available.

Enforcement notes

California (Cal OSHA)

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

Florida

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

Georgia

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

Illinois

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

Michigan (Michigan OSHA)

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

Missouri

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

New York

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

North Carolina

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

Wisconsin

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

For more information.

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

The forgotten question in PPE training

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

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

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

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

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

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

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

Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

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

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

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

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

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

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

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

Workers’ Compensation
Supreme Court defines Independent Contractors – California

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

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

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

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

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

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

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

 

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

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

Spider bite compensable – Illinois

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

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

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

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

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

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

Employer cannot be ordered to reimburse for medical marijuana – Michigan

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

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

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

Supreme Court upholds statutory benefits for Mesothelioma claims – Missouri

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

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

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

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

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

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

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

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

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

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

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

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

Smoking break injury not compensable – North Carolina

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

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


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

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

Coming and going rule nixes foreman’s benefits – Pennsylvania

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

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

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

OSHA watch

Long-awaited proposed rules to clarify crane operator requirements issued

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

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

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

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

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

California

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

Florida

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

Georgia

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

Kansas

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

New York

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

Pennsylvania

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

Tennessee (Tennessee OSHA)

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

Wisconsin

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

For more information.

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

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

Liberty Mutual Workplace Safety Index

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

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

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

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

 

Safety National review of high cost claims

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

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

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

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

 

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

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

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

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

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

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

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

OSHA watch

Silica safety enforcement ramped up at construction sites

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

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

Direct final rule revising Beryllium Standard for general industry issued

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

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

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

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

List of authorized outreach trainers now available online

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

Mid-Atlantic regional construction safety campaign shifts focus to falls

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

Enforcement notes

California

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

Florida

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

Georgia

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

Massachusetts

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

Michigan

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

Mississippi

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

Nebraska

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

Pennsylvania

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

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

The ten most dangerous jobs

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

No. 1 – Loggers

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

No. 2 – Fishers and related fishing workers

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

No. 3 – Aircraft pilots and flight engineers

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

No. 4 – Roofers

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

No. 5 – Refuse and recyclable material collectors

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

No. 6 – Structural iron and steel workers

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

No. 7 – Truck drivers and other drivers

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

No. 8 – Farmers, ranchers, and agricultural managers

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

No. 9 – Supervisors of construction workers

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

No. 10 – Grounds maintenance workers

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

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

Court decision: OSHA not legally bound by five-year look back for repeat violations

A recent court decision indefinitely extending the time limitation for OSHA to assess repeat violations has serious implications for employers. The case, Triumph Construction Corp. v. Sec. of Labor, involved a repeat excavation-related citation issued to Triumph Construction Corp. in 2014. A prior citation of the same evacuation standard was issued to Triumph in 2009.

Triumph argued that the repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation was outside OSHA’s stated repeat look-back policy in its Field Operations Manual (FOM), which was three years at the time. Under the Obama administration in 2016, the FOM was updated to expand the look back period to five years.

However, an OSHRC Administrative Law Judge and the U.S. Court of Appeals for the Second Circuit upheld the repeat citation. The court pointed out that neither the Occupational Safety and Health Act nor the regulations OSHA had issued under the Act spelled out any time period that limited the issuance of repeat citations. The time limitation set forth in the enforcement manual “is only a guide” and “is not binding on OSHA or the commission.”

In effect, the ruling means OSHA has the discretion, to go as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a “repeat” violation.

Why it’s important

Repeat violations can harm employers in a number of ways. First, the maximum penalties are ten times higher than serious and other-than-serious violations – $129,336 compared to $12,934. Plus, a violation at one location of a multi-establishment company can be used as the basis for a repeat violation at any other location in a fed OSHA state within that organization, a policy established under the Obama administration that still stands.

Yet, even more important is the way that repeat violations are used. OSHA continues to issue the shaming press releases for significant offenses and that includes repeat violations. Also, it increases the possibility of an establishment being placed into the Severe Violator Enforcement Program (SVEP), where they are publicly branded as severe violators, subject to more inspections, and have no way to get out. Further, it can affect insurance premiums and the ability to compete for contracts.

What employers should do

The best practice, of course, is to avoid OSHA inspections and citations. However, if an inspection occurs and minor penalties are issued, don’t assume that the best course of action is to pay the penalty. The court decision has made it clear that the FOM is not binding on OSHA or the Commission and does not create any substantive rights for employers. If a serious citation is issued and confirmed, the risk of a much more costly and damaging repeat violation exists indefinitely. When there is a good faith defense, it may be well worth contesting the violation.

If a citation is confirmed, employers should be vigilant to ensure that citations regarding the same hazards don’t reoccur.

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

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

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

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

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

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

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

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

Things you should know

Fatal work injuries reach highest level since 2008

Workplace fatalities increased for the third year in a row in 2016, according to the U.S. Bureau of Labor Statistics, rising to 5,190, a 7% increase from the 4,836 fatal injuries reported in 2015. Double-digit increases were reported in workplace violence and overdose fatalities.

Work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 2,083 fatalities, or 40% of the overall total. But violence and other injuries by persons or animals increased 23% to 866 cases, becoming the second-most common fatal event in 2016. Fatal work injuries from slips, trips and falls were the third-most common fatal event last year.

Texas was the state with the highest number of worker deaths (545), followed by California (376), Florida (309) and New York (272). In all, 36 states experienced increases in deaths due to workplace injuries in 2016.


Operation Airbrake puts 2,700 CMVs out of service for brake-related violations

An unannounced inspection blitz of commercial motor vehicles resulted in 14 percent being placed out of service for brake-related violations, according to the Commercial Vehicle Safety Alliance. On Brake Safety Day, which took place Sept. 7, CVSA inspectors checked 7,698 trucks and buses in the United States and Canada. The inspections resulted in 1,064 vehicles being taken out of service for brake violations and 1,680 (22 percent) for other infractions.


New video for tower workers: Safe use of snow-tracked vehicles

A new video highlights the proper operation of snow-tracked vehicles when accessing remote tower locations.


NIOSH withdraws proposed rule on respirator leakage standards

NIOSH has withdrawn a notice of proposed rulemaking that would have established standards for total inward leakage of half-mask air-purifying particulate respirators. According to NIOSH, the public comment period produced enough evidence to convince the agency to rescind the notice.

 

 

State News

California

  • A new law lowering the corporate officers’ ownership threshold for opting out of work comp coverage to 10%, from a current 15%, will be effective July 1.
  • The closed drug formulary for workers’ compensation will be updated quarterly by a committee of three doctors and three pharmacists who will meet several times a year, according to the Division of Workers Compensation.
  • The Department of Industrial Relations announced 376 workers died on the job in 2016, down slightly from 388 deaths in 2015 but still higher than the most recent low of 344 in 2014.

Florida

  • The Office of Judges of Compensation Claims reported that claimants’ attorney fees increased 36% in the latest fiscal year, following the state Supreme Court’s April 2016 decision in Castellanos v. Next Door Co., which reinstated hourly fees for claimants’ attorneys.

Illinois

  • Medical payments per workers compensation claim were 24% higher than the median for other states examined in a new study by the Workers Compensation Research Institute (WCRI).

Kansas

  • In 2016, there were 74 fatal work-related injuries according to the Census of Fatal Occupational Injuries (CFOI), 50% of which were transportation incidents.

Michigan

  • Workers’ compensation medical payments are among the lowest in the country, according to a WCRI study medical payments per claim, limited to 2.2% per year, due in part to lower prices paid for professional services as well as lower payments per service for hospital outpatient services.

Missouri

  • The Department of Insurance is recommending a 3% decrease in workers’ compensation insurance loss costs for 2018, on top of a 4% decrease that took effect on Aug. 1.

Minnesota

  • Minnesota experienced 92 workplace fatalities in 2016, a 24.3% increase over the prior year and 48.3% above the 2015 rate. Agriculture, forestry, fishing and hunting accounted for the most deaths, followed by construction.
  • The Workers’ Compensation Assigned Risk Plan has issued a notice regarding rates for new and renewal policies, effective Jan. 1 through March 31. Because certain classification codes have been eliminated and two new classification codes created, MWCARP is publishing new rate pages, effective Jan. 1. The eliminated classification codes are 1655, 1853, 3175, 3223, 4053, 4061, 4101, 6017, 7228, 7229 and 9149.The new classification codes are 7219 and 7225.

Mississippi

  • Workers die on the job at a rate double that of the national average, according to the National Employment Law Project. The national average is 3.4 deaths per 100,000 workers, while Mississippi’s rate is 6.8, the fourth highest number in the country for 2015, behind North Dakota’s more than 12, Wyoming’s 10 and Montana’s 7.5. The leading fatal work injuries by occupation were 35% for transportation/material moving and 17% for construction/extraction.

New York

  • Gov. Andrew Cuomo has signed legislation that will require workers’ compensation insurers to notify policyholders 30 days before hiking their renewal premiums by more than 10%.
  • The medical share of total workers’ compensation benefit costs dropped to 37% in 2015 and 2016 from a high of 42% in 2007, while the national average is 51.4%, according to a report by the New York Compensation Insurance Rating Board.

North Carolina

  • Medical payments per workers compensation claim decreased 6% per year from 2013 through 2015, according to the WCRI, likely due to fee schedule rules.
  • The Industrial Commission reminds stakeholders of a new employee misclassification statute that went into effect Dec. 31.

Pennsylvania

  • Acting Insurance Commissioner Jessica Altman has approved an emergency loss cost increase of 6.06%, effective Feb. 1, in response to the state Supreme Court’s Protz decision.

 

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