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

OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.


New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.


Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.


Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes

California

  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.

Florida

  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.

Georgia

  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.

Illinois

  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.

Indiana

  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.

Kansas

  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.

Michigan

  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.

Missouri

  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.

Pennsylvania

  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.

 

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

Legal Corner

FMLA
Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.


Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.


Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.


Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.


Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.


Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”


Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.


Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.


Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.


Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.


Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.


Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”


Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.


Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.


Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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OSHA watch

Injury tracking application restored

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


Comments sought on lockout/tagout

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

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

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


Website changes

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

Trench safety symposium webinar available online

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

Safety training videos for tobacco farm workers

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

Enforcement notes

California

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

Florida

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

Massachusetts

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

New York

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

Pennsylvania

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

Wisconsin

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

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