Things you should know

Updated Workers’ Compensation Medicare Set-Aside Reference guide issued

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

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

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

New app can help determine what’s allowed in MSAs

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

Study: Most manufacturing workers experience fatigue

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

Work comp insurers cite top concerns

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

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

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

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

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

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

New video on performing tower modifications

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

Injured Massachusetts teen workers lacked health and safety training: report

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

NIOSH releases resources on dampness and mold assessment

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

CPWR releases alert, toolbox talk on lightning safety

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

State News

California

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

Florida

  • OSHA resumes normal enforcement activity following Hurricane Michael

Massachusetts

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

Michigan

Minnesota

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

New York

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

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

OSHA watch

Maximum penalty of repeat or willful violation rises to $132,598

The cost of non-compliance is on the rise with the annual adjustment for inflation, effective January 24, 2019. The chart below shows the 2019 increases for each type of violation:

Violation Type/Description CFR Citation 2018 Max Penalty 2019 Max Penalty
Serious 29 CFR 1903.15(d)(3) $12,934 $13,260
Other-than-Serious 29 CFR 1903.15(d)(4) $12,934 $13,260
Willful 29 CFR 1903.15(d)(1) $129,336 $132,598
Repeated 29 CFR 1903.15(d)(2) $129,336 $132,598
Posting Requirement 29 CFR 1903.15(d)(6) $12,934 $13,260
Failure to Abate 29 CFR 1903.15(d)(5) $12,934 $13,260

Reminder: Feb. 1 was deadline for posting Form 300A

Each year, from Feb. 1 to April 30, OSHA’s Form 300A, which summarizes job-related injuries and illnesses logged in the prior calendar year, must be displayed in a common area where notices to employees are usually posted. Details can be found in our January 2019 issue.

Final rule on electronic recordkeeping issued

As expected, the final rule eliminates the requirement for establishments with 250 or more employees or those with 20 to 249 employees in certain industries with historically high occupational injury and illness rates to electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) each year. These establishments are still required to electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses). The final rule also requires covered employers to electronically submit their Employer Identification Number with their information from Form 300A.

The deadline for electronic submissions is March 2, 2019. More information.

A lawsuit has already been filed by the Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists arguing the final rule violates of the Administrative Procedure Act.

FAQs on silica standard for general industry published

The FAQs, which include answers to 64 questions organized by topic, provide guidance to employers and workers on the standard’s requirements, including exposure assessments, hazard communication and methods of compliance.

Free compliance assistance resources on falls offered online

To help employers prepare for the sixth annual National Safety Stand-Down to Prevent Falls in Construction, set to take place May 6-10, the following resources are online:

Requirements for trainers in Outreach Training Program revised

Among the 18 changes, which are scheduled to go into effect April 1, is eliminating the 90-day grace period after a trainer card expires, as well as updating the trainer code of conduct and responsibilities.

New safety resource on safe operation of tractors

A new rollover protection brochure provides information in English and Spanish on the safe operation of tractors. It emphasizes the importance of using rollover protective structures and seat belt systems to help reduce worker injuries.

Enforcement notes

California

  • US Postal Service faces fines of $149,664 for not addressing worker safety in high-heat conditions after a mail carrier was found dead in a postal vehicle on a record-setting 117-degree-Fahrenheit day in July.

Florida

  • Compass Group USA Inc., operating as Chartwells Dining, was cited for exposing employees to burn and chemical hazards at its cafeteria in Coral Gables. The company faces $134,880 in penalties for exposing employees to hazards associated with exit routes, failing to provide suitable facilities for quick drenching for employees who work with cleaning chemicals, and for not providing effective training to the employees working with the chemicals.
  • Inspected under the REP for Falls in Construction, Ad-Ler Roofing Inc. was cited for exposing employees to dangerous falls at a Naples residential worksite, one month after similar violations were found at another worksite. The Fort Myers-based contractor faces penalties of $91,466.

Missouri

  • New Haven-based Franklin County Construction LLC faces $56,910 in penalties after an employee suffered fatal fall injuries when a roof truss collapsed.

Nebraska

  • Hastings-based Noah’s Ark Processors is facing $182,926 in penalties after an employee suffered severe burns caused by exposure to anhydrous ammonia at one of its meat processing facilities. Sixteen serious violations were issued relating to process safety management (PSM) program deficiencies, failing to guard roof openings, and electrical safety and lockout/tagout violations.
  • An administrative law judge of the OSHRC affirmed a serious violation and $11,408 penalty after an employee was hospitalized due to an arc flash. Jacobs Field Services’ policy of permitting employees to remove portions of their personal protective equipment after they had determined the load side – but not the line side – of an electrical disconnect box was de-energized violated the statute.

New York

  • St. Louis, Mo-based Western Specialty Contractors is facing criminal charges and $155,204 in penalties for exposing employees to serious injuries. Operated by an untrained employee, an unsecured mini-crane overturned and fell four stories at an NYC worksite.
  • An administrative law judge of the OSHRC affirmed a serious violation against Fairport-based Ontario Exteriors Inc. when a worksite policy that directed its employees to traverse a steep second-story roof without fall protection at the beginning and end of each work day resulted in the injury of one worker. The law judge reduced the fine in half to $1,811 noting that the court believes the company will comply with fall protection requirements in the future.

Pennsylvania

  • Spear Excavating LLC based in Pennsburg was cited for exposing employees to trenching hazards at a worksite in Malvern. The company faces $106,057 in proposed penalties. The inspection was initiated by a complaint.
  • An administrative law judge of the OSHRC affirmed a serious citation and $11,408 fine against Coastal Drilling East LLC after an employee’s finger had to be amputated following a workplace accident. Cited under the general duty clause, the company argued that abatement of the cited condition was infeasible and the violation was the result of unpreventable employee misconduct, but the law judge cited an absence of training, instruction, and supervision and inconsistent enforcement.

Wisconsin

  • Two utility contractors – Bear Communications LLC of Lawrence, Kansas, and subcontractor V C Tech Inc. of Ypsilanti, Michigan – were issued a serious safety violation, and face penalties of $12,934 each – the maximum penalty allowed when they failed to establish the location of underground utilities prior to beginning excavation work. A volunteer firefighter responding to the incident was fatally injured.

For additional information.

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

A new approach to serious injury and fatality prevention

Since the advent of Heinrich’s Injury Pyramid in 1931, it has been generally accepted that there is a predictive relationship between the frequency and types of non-injury, minor injuries and the serious, life-altering or threatening injuries, at the top of the triangle. The safety triangle theorizes that for every major injury there are 29 minor injuries and 300 non-injury incidents. Though this triangle is considered a gold standard, many safety professionals realize that all non-injury or minor incidents are not equal and some have more potential to result in a serious injury or fatality (SIF).

A recent report by the Campbell Institute, Serious Injury and Fatality Prevention: Perspectives and Practices recommends a redesign or enhancement of the model. The new SIF prevention model would look at all incidents – namely, precursors to accidents, recordable injuries, lost-time injuries and fatalities – and seek out those with serious injury and fatalities potential. It encourages organizations to focus on the process factors that lead to SIF, rather than human error, which will always occur. They should focus on repairing gaps in their safety management system, workplace culture, and changing or modifying work processes that eliminate human error.

For example, a workplace with a production problem may ignore or even condone shortcuts and speed, which can lead to bad decisions by workers. A forklift operator may drive too fast and not wear a seatbelt, which can lead to a serious accident. While there can be a tendency to blame the worker, the production demands were the proximate cause and the precursor to the event. According to the author of the paper, Joy Inouye, a key to lowering the fatalities in the workforce lies in an organization’s ability to look inward. “Instead of blaming the worker for not putting on his seatbelt, start to look at those organizational factors that contributed to that.” The report includes examples of companies that have successfully revamped strategies for identifying risk factors.

Trends in injury patterns validate the need for a shift in thinking. While employers have done a good job in reducing the total recordable incident rate, there has been a disturbing increase in the number of workplace fatalities and catastrophic injuries. Diving deeper into near misses and smaller, less serious incidents could help prevent on-the-job deaths or catastrophic injuries. By identifying potential precursors to such events and educating employees about those precursors, companies can focus on eliminating the potential for such incidents to occur.

The report recognizes that isolating incidents with the potential for SIF requires serious groundwork. It suggests next steps like organizing a think-tank that defines “serious injury”, “precursor” and “potential.” To determine whether an incident is a potential SIF or not, it may make sense to define and use a Severity Scale that can be consistently understood by anyone, one that is tied to potential outcomes. For example, most severe could be an injury that would lead to the death of an individual, and the least severe could be first aid and immediate return to work. Including specific injury examples can be helpful.

Implementation raises the bar of safety management and requires a proactive, rather than reactive approach. It will take careful planning – both around the processes used and the responsibilities assigned.

What employers can do

  • Review and evaluate your near miss reporting system
    • Do workers fear the consequences of reporting something they may be blamed for or is there a culture of trust and all workers participate in reporting?
    • Is near miss training part of new hire orientation?
    • Are supervisors and management onboard and do they foster a reporting culture?
    • Is reporting simple and straightforward?
    • Does the report provide a solid log of what leads up to the incident?
    • Is the definition of near miss clear?
    • Is there a thorough investigation that identifies the root cause?
    • Are corrective actions taken and employees notified?
  • Have supervisors explain to employees why the company is focusing on the smaller incidents and near-misses, and how a minor incident can turn major. Explain the importance of looking at potential rather than actual outcomes for minor incidents.
  • Think-outside-the box. A recent article in Risk and Insurance described how Wente Family Estates vineyards teamed up with the criminology department at Holy Names University in Oakland to take a look at workers’ comp data to analyze injuries and near misses, pinpointing problem areas and gathering insight on how to prevent future losses. The idea was based on a partnership between United Airlines and the University of New Haven that used interns from the criminology department as part of a data visualization project, leading to a 23 percent reduction in employee injuries and a 29 percent reduction in aircraft damage on the ground.

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

Things you should know

2018 WorkComp Benchmark Study released

The sixth annual Workers’ Compensation Benchmarking Study Report by Rising Medical Solutions, Inc. focuses on key issues influencing medical management performance and the most potent strategies to address these issues.

BLS report: Fatal injuries remain over 5,000

The number of fatal work injuries dropped slightly in 2017 to 5,147 down from 5,190 in 2016. Fatal falls were at their highest level in the 26-year history of the BLS’s reporting, accounting for 17.2% of employee deaths, while transportation incidents again account for the most deaths with 2,077, or 40.4%.

In 2017, 15.1% of fatally injured workers were age 65 or over – a series high. The number of deaths among Hispanic or Latino workers rose 2.7% to 903 in 2017.

Report: Injured restaurant workers miss an average of 30 days

AmTrust Financial Services Inc., a provider of workers compensation insurance, took a deep dive into common restaurant injuries, lost time, industry loss ratio trends and how to implement loss control best practices in its report, Restaurant Risk Report. Cafés and coffee shops had the highest lost time, on average 45% more time lost than all other restaurant types. Wrist injuries are the biggest danger for coffee shop workers, with “barista wrist” resulting in an average of 366 days to return to work.

Study: Musculoskeletal injuries to long-haul truck drivers

Nearly half of all musculoskeletal injuries reported by long-haul truck drivers are to their arms, backs or necks – the majority being sprains and strains – according to a recent study conducted by researchers from the University of Alabama at Birmingham. Drivers most often were injured because of a fall (38.9 percent) or contact with an object or equipment (33.7 percent).

Of those injured, 53 percent required time away from work, at a rate of 355.4 incidents per 10,000 full-time workers, which is more than double those of other hazardous professions. The researchers said the study suggests the need for injury prevention and interventions and ways to improve recovery when injuries occur.

Report ranks states by risk of violence from Black Friday

A report ranking states by risk of violence during Black Friday was recently released by Reviews.org. Included in the report are the employers that have the most incidents during Black Friday.

State News

Florida

  • Department of Economic Opportunity announced that the statewide average weekly wage paid to injured workers by employers will be $939 starting Jan. 1.

Minnesota

  • A total of 101 fatal work-injuries were recorded in Minnesota in 2017, an increase from the 92 fatal work-injuries in 2016 and 74 fatal work-injuries in 2015. More information

Missouri

  • The Department of Insurance is recommending a 3.5 percent decrease in workers’ compensation insurance loss costs for 2019, the fifth year in a row rates will decrease.

New York

North Carolina

  • The Workers’ Compensation Research Institute’s (WCRI) Benchmark shows that medical payments per workers’ comp claim decreased significantly since 2013, falling 6 percent each year through 2016.
  • The Industrial Commission has finalized settlement agreement rules, The “Group 2” rules aimed to clean up some inconsistent language and streamline the settlement process, as well as clarify wording relating to attorney’s fees. The rules took effect Jan. 1.
  • The Commission approved Group 1 rule changes, which took effect Dec. 1. Medical motions, responses and appeals on medical motions must be submitted electronically and must include the opposing party’s position on the matter.

Pennsylvania

  • Insurance commissioner approved two loss cost reductions that together will amount to a 14.74% decrease, starting Jan. 1. Loss costs are one of many factors that determine premiums for workers’ comp insurance.
  • Department of Labor and Industry reported that the maximum compensation rate will rise by 2.3%, to $1,049 per week, starting Jan. 1. It’s website offers a chart to determine compensation based on the employee’s average weekly wage.
  • Department of Labor and Industry announced that it has adopted the Red Book, published by Truven Health Analytics, to determine the average wholesale price of prescription drugs.

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

Legal Corner

ADA
Bank pays $700,000 for inflexible disability policy

A bank has agreed to pay $700,000 to settle an EEOC lawsuit for violating the ADA. Hudson City Savings Bank, which merged into Wilmington Trust Co., a subsidiary of Buffalo, New York-based M&T Bank Corp. in 2015, had a long-standing inflexible policy of placing employees with impairment or disabilities on involuntary leave or discharging them until it received a medical provider’s clearance to return to work with no restrictions.

Disability discrimination case of health worker who refused vaccine dismissed

In Janice Hustvet v. Allina Health System, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis. Allina required Courage Center employees who had patient contact to get a vaccine for measles, mumps and rubella as part of a preplacement health assessment screen. An independent living skills specialist refused noting she had many allergies and chemical sensitivities.

When she was fired, she filed a disability discrimination suit under the ADA. The court found that the requirement to undergo a health screen was job-related and consistent with a business necessity. Further, there was insufficient evidence that her chemical sensitivities or allergies substantially or materially limit her ability to perform major life activities.

Workers’ Compensation
Apportionment for pre-existing, asymptomatic conditions allowed – California

In City of Petaluma v. WCAB (Lindh), a police officer suffered head injuries during a training exercise, experienced headaches and lost vision in his left eye. A medical assessment determined that he had a pre-existing vascular condition that predisposed him to a loss of eyesight. While an administrative law judge and the WCAB granted a 40% permanent disability without apportionment, the 1st District Court of Appeal noted statutes provide that permanent disability must be apportioned based on causation, as long as there is substantial medical evidence that the disability was caused, in part, by nonindustrial factors. The condition does not have to manifest itself; an asymptomatic condition, means a condition that is present but for which there aren’t any symptoms.

The court therefore ordered the case sent back to the board to issue an award apportioning 85% of Lindh’s disability to his pre-existing condition, and 15% to his industrial injury.

Workers’ fraud means carrier can seek modification of benefits – Florida

Florida’s statute allows a judge of compensation claims to change benefits if there is a change in condition or if there was a mistake in a determination of fact. In U.S. Fire Insurance Co. v. Hackett, the carrier had been paying for around-the-clock attendant care provided by the husband and daughter of the injured worker. Over 25 years after the accident, the injured worker stopped seeing her treating doctor.

The carrier then conducted surveillance and found she was not receiving all the attendant care for which they were paying and questioned the need for continued care. While a judge agreed that the husband and daughter were deceiving the carrier, she denied the carrier’s petition for modification, reasoning that the evidence established fraud, not a change in medical condition. She also stated she did not have the authority to compel an IME. The Court of Appeal for the 1st District disagreed and reversed the decision.

Injured worker cannot sue third party – Illinois

In A&R Janitorial v. Pepper Construction Co.; Teresa Mroczko, an employee of a janitorial service was cleaning an office building. At the same time, a subcontractor was replacing carpets and a desk that had been placed in an upright position fell and injured the custodian. She collected workers’ comp benefits from her employer, but did not file a timely personal injury action against the construction company.

Under Illinois law, if a worker does not file a personal injury action, her employer can. While the litigation was pending, the worker filed her own action, but was denied as untimely. Later, she filed a petition to intervene in her employer’s case. While a judge denied the petition, the Appellate Court reversed and the case went to the Supreme Court.

The Supreme Court reversed on res judicata grounds – the matter had already been adjudicated by a competent court and may not be pursued further by the same parties.

Temporary staffing employee cannot sue assembly plant – Indiana

An employee of a temporary staffing agency was assigned to work in an assembly plant. When her hand was crushed by a punch press and a finger was severed, she collected workers’ comp from her employer, the temporary staffing agency. Later she filed suit against the assembly plant, claiming negligence.

The assembly plant argued that it was immune from civil liability since the worker was an employee and the courts agreed. The Indiana statute provides “a lessor and a lessee of employees shall each be considered joint employers of the employees provided by the lessor to the lessee.”

Attorney’s text message to IME does not bar medical report and testimony – New York

In Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, a divided appellate court ruled that the Workers’ Compensation Board erred in barring the introduction of the IME’s report and testimony at a later hearing because the attorney sent a text message to the physician and not the opposing counsel.

The message requested an update on the loss of use of the worker’s left foot, which had been determined at 40.5% for comp benefits. Following the exam, the IME found an 88% scheduled loss and the Board reopened the case. The Board credited the employer’s physician’s report and awarded a 50% loss, precluding the IME’s report.

In overturning the decision, the appellate court noted the message ‘appears to be a limited communication’ and did not reflect an effort to influence the physician’s testimony or opinion.

Injured employee can continue medication beyond its recommended short-term use – New York

In Matter of Byrnes v. New Island Hospital, an appellate court ruled that an injured nurse could continue use of Amrix, a muscle relaxant, which is recommended for only short-term use on the board’s Non-Acute Pain Management Guidelines, but which she had been using for over 16 years. The injured worker’s doctors argued that the medication, in combination with other therapies, allowed her to perform the activities of daily living and to continue working as a nurse and the effects of the drug vary by individual.

The court supported the board’s finding that the medication was medically necessary.

Additional compensation awards subject to durational limits – New York

In Mancini v. Office of Children and Family Services, the state’s highest court ruled the additional compensation awards permissible under Section 15 (3) (v) of the Workers’ Compensation Law are subject to the durational limits set out under Section 15(3)(w) – those for workers with non-schedule injuries. The ruling is a continuation of the state’s trend toward caps on benefits that started with the 2007 reforms.

Supreme Court overturns compensability award based on preexisting condition – North Carolina

In Pine v. Walmart Associates, a long-time employee fell and was released to return to work, but continued to experience pain. A few months later, imaging revealed nerve damage and she filed a workers’ compensation claim. Walmart accepted liability for the right shoulder and arm injuries, but denied liability for the condition of her cervical spine as well as other injuries, since she had a pre-existing degenerative disc disease.

The Industrial Commission found her injuries and subsequent pain were the result of the earlier fall and were compensable based on the Parson’s presumption that injured workers should not be required to prove their need for treatment was related to the original injury every time they seek further medical care. While noting the commission applied the incorrect standard in determining compensability, the Court of Appeals affirmed.

While this was under appeal, legislation was enacted that amended the statute, Section 97-82(b), to clarify that the Parsons presumption applies only to the specific injury that was accepted on a Form 60. Since the statute was applicable to all cases not yet resolved, the worker was not entitled to a presumption that her other conditions were compensable. Further, it was unclear if the commission made findings of causation independent of the application of the presumption; therefore, the decision had to be set aside.

Petition for civil contempt cannot compel interest payments on benefits delayed while employer appealed award – Missouri

In Smith v. Capital Region Medical Center, a widow was awarded benefits for the death of her husband. When the employer appealed the award, there was a delay of about 1.5 years before the Court of Appeals affirmed it. The widow filed a petition for civil contempt to compel the employer to pay the interest owed, but the court noted Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money.

First employer liable for reoccurrence of injury of worker hired through labor union – Nebraska

In Weyerman v. Freeman Expositions, a stagehand was a member of a local union. The union had a collective agreement with Complete Payroll, which was considered the employer of members of Local 42 when they worked on its jobs, but the union also had agreements with other companies, including Freeman Expositions, which specified it was the “employer” when union members were working on its jobs.

The stagehand was injured while working for Freeman and the treating doctor cleared him to return to work in about a week. Complete Payroll sent the worker to another job, but he was unable to perform because of back pain. Then he was cleared to return to work, but did not go back and began seeing another doctor and filed for workers’ compensation.

The workers’ compensation court found he suffered an injury to his back while working for Freeman Expositions and that he suffered a recurrence of the injury several weeks later and he had not reached MMI. While the Court of Appeals acknowledged conflicting evidence, it affirmed the decision that Freeman was liable for both injuries.

Question of disability limits benefits for daughter with incurable eye disease – Pennsylvania

In Aqua America v. WCAB (Jeffers), a worker was killed in an auto accident, leaving behind a wife and four children. Under the law, payment of benefits to minor children continue until they reach the age of 18 and beyond, if they have a disability.

His daughter suffers from an incurable, progressive eye disease, which will eventually leave her legally blind. The widow sought dependency benefits that would continue after her daughter turned 18.

While a workers’ compensation judge and the Workers’ Compensation Board approved the daughter’s benefits beyond the age of 18, until the employer could prove she was capable of self-support, the Commonwealth Court overturned. It noted disability involves “not merely physical impairment, but loss of earning power” and there was no evidence regarding loss of earning power.

Patient’s ulcer not attributable to pain medications – Tennessee

In Steak N Shake v. Yeager, a restaurant worker suffered serious injuries in a fall and was given prescriptions for several pain medications. A week after his fall, he returned to the hospital complaining of weakness, dizziness and chest pain and a doctor posited that the ulcer was likely caused by the combination of meds. The Department of Labor ordered the restaurant to pay for his care.

His hospital bill was over $48,000 and the restaurant contested it by filing a civil suit against the worker. In so doing, they obtained admissions that the worker had taken more meds than prescribed and he consumed an average of three ounces of liquor daily. While a trial judge upheld the award, the Special Workers’ Compensation Appeals Panel reversed and the Supreme Court upheld the Panel’s decision not to award benefits.

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

OSHA watch

Revised Beryllium Standard for General Industry proposed

The proposed rule, published in the Dec. 11 Federal Register, would revise provisions regarding recordkeeping, personal protective clothing and equipment, written control exposure plans, disposal and recycling, medical surveillance, and hazard communication. It also would change or add six terms in the “definitions” paragraph of its regulations: beryllium sensitization, beryllium work area, chronic beryllium disease, CBD diagnostic center, confirmed positive and dermal contact with beryllium.

Another proposed change is removing Appendix A, which lists suggested controls, and replacing it with a new Appendix A, “Operations for Establishing Beryllium Work Areas.”

The enforcement date for the provisions affected by this proposal was December 12, 2018. While this rulemaking is pending, compliance with the standard as modified by this proposal will be accepted as compliance. The deadline to comment on the proposed rule is Feb. 11.

Initiative to increase awareness of trenching and excavation hazards and solutions launched in southeastern states

As part of the agency’s focus on trenching safety, area offices in Alabama, Florida, Georgia, and Mississippi have launched an initiative to educate employers and workers on trenching safety practices. They are reaching out to excavation employers, industry associations, equipment rental organizations, water utility suppliers, and national and local plumbing companies to educate them to identify trenching hazards. Compliance assistance resources are available on the updated Trenching and Excavation webpage.

CPWR infographic provides trench safety tips

CPWR, The Center for Construction Research and Training, developed an infographic focusing on trench safety, including best practices to protect workers in trenches.

(English / Spanish)

Winter weather resources

The Winter Weather webpage provides information on protecting workers from hazards while working outside during severe cold and snow storms. This guidance includes information on staying safe while clearing snow from walkways and rooftops.

Court ruling: general contractors can be cited for hazardous conditions at multi-employer worksites, even if those conditions do not directly affect their own employees

The U.S. Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, recently overturned a ruling of the OSHRC that Hensel Phelps Construction Co., a general contractor, could not be held liable for violations from one of its subcontractors, under the multi-employer work site policy despite it not having any employees exposed to the hazard.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit aligned with seven other federal circuit courts in granting OSHA authority to issue citations to controlling employers.

Certification organization releases employer guides on updated crane operator requirements

The National Commission for the Certification of Crane Operators has published three employer guides on the updated crane operator requirements, which went into effect Dec. 10. The two-page guides address the rule’s training, certification and evaluation regulations.

(Training / Certification / Evaluation)

Area offices must use four-part test when citing respiratory hazards without PELs

Area offices must apply a four-part test before issuing General Duty Clause citations for respiratory hazards that do not have a permissible exposure limit, according to a memorandum sent to regional administrators.

The memo, issued Nov. 2, notes that area offices cannot base a General Duty Clause citation on only a “measured exposure” in excess of an occupational exposure limit or a documented exposure to a “recognized carcinogen.” Instead, they must use the following tests in those situations:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or physical harm.
  4. A feasible and useful method to correct the hazard was available.

Enforcement notes

California

  • Santa Cruz-based Future2 Labs Health Services Inc., a manufacturer of cannabis products faces $50,470 in penalties for 10 violations, following an explosion that left a worker seriously injured.
  • A Riverside construction company, Empire Equipment Services Inc., was cited $66,000 for serious workplace safety violations that resulted in the death of a worker when a 17-foot-deep trench collapsed.
  • The U.S. Army Reserve 63 Regional Support Command at a Sacramento maintenance facility was issued safety violations, after a federal civilian employee was fatally injured when the automated lifting mechanism of a utility vehicle cargo box failed and pinned him between the bed and the vehicle frame
  • Southern California Edison received six citations, totaling $95,435 in penalties, after a worker suffered a serious electric shock. Inspectors determined that the company failed to control hazardous energy, isolate exposed underground cables with protective coverings, and eliminate all possible sources of backfeeding energy.

Florida

  • Jacksonville-based Derek Williams, operating as Elo Restoration Inc., was cited for exposing employees to fall hazards at two separate worksites in St. Augustine and Daytona Beach. Inspected under the Regional Emphasis Program on Falls in Construction, the roofing contractor faces $116,551 in penalties.
  • Elo Restoration was also cited, along with Travis Slaughter, operating as Florida Roofing Experts, Inc., for exposing workers to fall hazards at another St. Augustine worksite. Responding to a complaint of unsafe roofing activities, inspectors determined that the companies failed to ensure workers were attached to a fall protection system. Both companies were issued the maximum allowable penalty of $129,336.
  • L.A. Disaster Relief and Property Maintenance LLC, a property maintenance and land clearing company, faces $94,415 in penalties for failing to implement a hazard communication program after an employee suffered burn injuries at a McDavid worksite.
  • Doral-based Nupress of Miami, Inc., a commercial printer, faces $71,139 in penalties for exposing workers to amputation, electrical, and other hazards.
  • Turnkey Construction Planners Inc., a roofing contractor based in Melbourne, was inspected under the Regional Emphasis Program on Falls in Construction and faces $199,184 in penalties for exposing employees to fall hazards.

Georgia

  • Parts Authority LLC, doing business as Parts Authority Georgia LLC, a wholesale auto and truck parts distributor based in Norcross, faces $133,406 in penalties for exposing employees to fire, electrical shock, and struck-by hazards.

Missouri

  • World Wrecking and Scrap Salvage Services Inc., a demolition company, was cited for failing to provide fall protection after two employees suffered fatal injuries at a demolition site in St. Louis and faces penalties of $23,280.

Nebraska

  • Clearwater-based Thiele Dairy was cited for failure to develop and implement safety and health programs related to grain bin entry after an employee suffered fatal injuries and faces penalties totaling $78,899.

Pennsylvania

  • In Secretary of Labor v. J.D. Eckman Inc., an administrative law judge of the OSHRC vacated citations against the bridge and highway construction company related to a workplace incident in which an employee was fatally struck in a traffic control zone. The citation was issued under the General Duty Clause, which the judge found inapplicable under the circumstances.

For more information.

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Important takeaways from recent studies and reports

Outlook for workers’ comp is stable, but rising medical and legal costs and payroll threaten profits – AM Best Co. Inc.

Currently, AM Best has a stable outlook on the U.S. workers’ compensation industry, the largest component of the U.S. commercial lines segment. However, the well-known rating agency sees some threatening headwinds that can alter the industry’s course. In 2017, growing payrolls helped offset rate decreases and overall soft-market conditions, according to the report. The agency believes that the use of technology, which has provided greater insights into underwriting, pricing and claims decisions, has helped support the line’s health and will continue to do so.

Despite the positive results, AM Best believes the trend of declining rates likely will trigger profit margin compression, possibly as soon as 2019. Unemployment has decreased steadily since 2010; however, AM Best notes that long unemployment rate declines typically are followed by sharp spikes in unemployment, and believes that workers’ compensation writers should be prepared for a downside scenario as well.

In addition, while there has been a decline in loss frequency, medical cost inflation, as well as the potential for accelerating frequency if employers hire less-qualified candidates are a concern. Rising medical loss cost severity, the declining benefit from prior accident year reserve redundancies and high average settlements on cases stemming from attorneys’ growing involvement and litigation, also put pressure on pricing.

Employer takeaway: The report is good news about the stability of rates in the short term. It also provides insights as to how insurers will be evaluating risk. The continued growth of technology in underwriting and pricing means that a company’s risk profile is critical. Insurance companies have become quite sophisticated and rates will be based on their perception of your risk. The way to get the best rates is to improve your risk profile – not bidding and quoting. There are trends and claims that are red flags for underwriters, including claim severity, high medical costs, and excessive attorney involvement. If you have claims in these categories, it’s a good idea to document special circumstances as well as actions taken to prevent future occurrences.

Employee care concern and satisfaction -WCRI

An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested, according to Comparing Outcomes for Injured Workers reports by the Workers Compensation Research Institute (WCRI). Telephone interviews were conducted with close to 10,000 injured workers from 15 states who were hurt at work between 2010 and 2014. The workers interviewed live in Arkansas, Georgia, Kentucky, Florida, Iowa, Indiana, Tennessee, North Carolina, Virginia, Minnesota, Michigan, Pennsylvania, Wisconsin, Massachusetts, and Connecticut.

Among the findings:

  • An average of 10.5% of workers across 15 states never return to work as the result of a workplace injury, and an average of 16.7% reported difficulties getting the health services they wanted or their physicians requested.
  • Between 12% and 21% of injured workers reported “big problems” getting the service they or their primary provider wanted, with 10 of the states falling in the 17% to 18% range. Pennsylvania had the lowest rate of 12%.
  • Between 11% and 20% reported being “very dissatisfied” with their care.
  • Thirteen percent of workers said they did not return to work for at least a month after their injury.
  • Between 6% and 11% of injured workers report a significant loss of income due to injury at the time of the interview.

Employer takeaway: The data reinforces the message that employers must be proactive and vigilant in managing workers’ comp. This is not new “news” – recovery-at-work programs, medical management best practices, and open lines of communications among all stakeholders are the cornerstones of a successful program.

First-ever industry breakdown of drug use in the American workforce – Quest

Quest, a leading drug-testing provider, announces the rate of positive drug test results annually based on an analysis of 10 million urine tests. The new data marks the first time Quest has broken it down by industry.

The rate of positive test results for illicit drugs was highest in retail (5.3%), health care and social assistance (4.7%), and real estate rental and leasing (4.6%) sectors in 2017, while the utilities (2.8%) and finance and insurance (2.6%) sectors had the lowest rates. Drug use by the workforce increased each year, and by double-digits over the two years between 2015 and 2017, in five of 16 major U.S. industry sectors analyzed. The highest rates were in consumer-facing industries.

Marijuana was the most commonly detected substance, with the highest drug positivity rate of all drug classes across the majority of industry sectors. Marijuana positivity was highest in accommodation and food services, at 3.5 percent in 2017, more than 34 percent higher than the national positivity rate of 2.6 percent for the general U.S. workforce.

Employer takeaway: With low unemployment and tight job markets as well as legalized recreational marijuana in many states, many employers have dropped pre-employment drug tests for positions that aren’t safety sensitive. The analysis suggests that employers can’t assume that workforce drug use isn’t an issue in their industry. Employers are responsible for ensuring the safety of workers, customers, and members of the general public and this is one of the more vexing areas. Review your written drug policies, clearly communicate expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment.

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

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

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

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

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

Form 300A posting deadline February 1, 2019

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

Standard interpretations on recordkeeping issued in 2018 include:

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

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

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

Electronic rule-making update

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

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

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

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

Form 300A electronic submission deadline: March 2, 2019

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

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

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

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

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

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

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

Legal Corner

Workers’ Compensation
ABC test applies only to wage order claims – California

Earlier this year, the Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors. The Dynamax vs The Superior Court of Los Angeles County case was decided for the purposes of the state’s wage orders, but some speculated it might be applied more broadly.

Recently, in Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders, and that other claims continue to be governed by the prior (and more employer-friendly) standard known as the Borello test. It noted: “Dynamex did not purport to replace the Borello standard in every instance where a worker must be classified as either an independent contractor or an employee for purposes of enforcing California’s labor protections…[The California Supreme Court] did not reject Borello, which articulated a multifactor test for determining employment status under the Worker’s Compensation Act.”

No coverage for injury that occurred before issuance of policy – Florida

An insurance broker scrambled to get a policy in place for an uninsured employer dated the same day of an employee injury without disclosing the incident to the insurance carrier. In Normandy Ins. Co. v. Sorto, an appellate court ruled that there could be no coverage because insurance laws preclude coverage for losses that have already taken place. The court noted agreement to assume a known loss is not insurance. Insurance is to provide protection against risk. One cannot insure against known losses; there is no risk.

Lunch break injury not compensable – Georgia

In Frett v. State Farm Employee Workers’ Comp., an insurance claims associate had a scheduled lunch break and walked to the break room to microwave her lunch, which she intended to eat outside. In the breakroom, she fell in a puddle of water and a manager instructed her to complete an incident report. While an administrative law judge granted benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

The board found the injury did not arise out of her employment because it occurred while she was on a regularly scheduled break and while she was leaving to attend to “a purely personal matter.” While there was precedent for compensability when a worker is entering or exiting the employer’s property, even during break times, the court said this was a mistake and disapproved of its prior decisions.

Injured employee has right to sue employer under retaliatory discharge statute – Massachusetts

In Bermudez v. Dielectrics, Inc., a worker was placed by a temporary employment agency in a manufacturing facility. She sustained work-related injuries when one of the manufacturer’s employees negligently operated a forklift and several large metal sheets fell on her foot. She received work comp benefits from the employment agency and returned to work at the manufacturer eight weeks later. A few months later, she was hired as a full-time employee at the plant.

Eighteen months later, she filed a third-party action for negligence against the manufacturer and the forklift operator. Two months later she was terminated and she sued.

While a trial judge ruled in favor of the company, an appeals court found that the workers’ compensation law specifically says a worker can initiate a third-party action in addition to receiving benefits through the comp system and that a 1971 amendment eliminated the election of remedies concept (comp remedy or a civil claim). The worker had a right to file her third-party action and she could not be fired for doing so.

Worker on business trip who witnessed killings at a restaurant awarded benefits for PTSD – Michigan

In Dickey v. Delphi Automotive Systems LLC., an employee was at a restaurant in Mexico with clients and workers when he witnessed gunmen kill several people in the restaurant. When he returned to Detroit, he was diagnosed with PTSD. The Commission held it was logical to conclude that one who witnesses a horrific, stressful, and traumatizing event such as a multiple murder could possibly be afflicted with PTSD and that the award of benefits was reasonable. The employer’s examining doctor found that his symptoms were related to the side effects from the medicine he was taking, but the magistrate relied on the opinion of the treating doctors, who were actually increasing the worker’s medications.

Murder of worker by co-worker not work related – Michigan

In Williams v. Park Family Health Care PC, a worker was killed by a co-worker who she previously dated. She had broken off the relationship because he was married and not seeking a divorce. He let himself into the building, killed the worker, set the building on fire, and killed himself.

While the court found the death occurred in the course of employment, it did not arise out of her employment. The feud was personal and not connected to her employment.

Devastating stroke after reaching MMI does not affect permanent total disability benefits – Nebraska

In Krause v. Five Star Quality Care, a housekeeper fell and fractured her right femur. After her surgery she attempted to return to work, but experienced too much pain. About 2.5 years later, she filed a petition in Workers’ Compensation Court seeking temporary and permanent disability benefits. Approximately three weeks later, she suffered a massive stroke that left her incapacitated.

The compensation court, finding that the stroke was unrelated to the work injury or treatment, found she had reached maximum medical improvement prior to her stroke and awarded her permanent total disability benefits (PTD). The company argued that the stroke cut off her entitlement to PTD benefits. The court disagreed, noting that her work-related disability did not cease once she had the stroke.

Treatment guidelines apply to out-of-state providers – New York

In Matter of Gasparro v. Hospice of Dutchess County, a home health aide sustained work-related injuries to her lower back and buttocks while employed in New York and was given a nonscheduled permanent partial disability classification. Ten years later, she moved to Nevada.

Several years later, the workers’ compensation carrier objected to payment of various medical charges from a pain management specialist in Nevada. A workers’ compensation law judge ruled in favor of the medical provider, but the Workers’ Compensation Board reversed and the appellate court agreed.

Although the Board had departed from its prior decisions on the issue, the appellate court found it was rational to require medical treatment be in compliance with the guidelines.

Unreasonable deviation from employment nixes benefits – New York

In Matter of Button v. Button, a farmhand was seriously injured in a vehicular accident as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself. His residence was across the road from the farm and his girlfriend was moving in that day. He stopped at the house and grabbed a beer and the accident occurred on the way back to the farm.

His comp claim was denied by a judge because he was engaged in a prohibited activity at the time of the accident (drinking) and, therefore, his injuries did not arise out of and in the course of employment. The Board affirmed as did the appellate court, noting there was a verbal warning about drinking on the job and that other employees testified the consumption of alcohol at work was prohibited.

Workers’ Compensation Board must determine if worker is independent contractor – New York

In Findlater v Catering by Michael Schick, Inc., a state appellate court held that a trial court’s finding that a worker was an independent contractor, and not an employee, must be reversed. It found that employment issues must be decided by the Workers’ Compensation Board and the court erred by not holding the matter in abeyance pending a final resolution.

Volunteer can pursue personal injury suit in spite of liability waiver – New York

In Richardson v. Island Harvest, an unpaid volunteer worked as warehouse assistant and signed an agreement, which stipulated he was a volunteer and would not attempt to hold the organization liable for any bodily injuries he suffered in the course of his volunteer activities. He was struck by a forklift being operated by an employee and filed a personal injury suit. While a county Supreme Court Justice granted summary judgment to the organization, an Appellate Court reversed.

“New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy,” the Appellate Division said.

Insurer cannot sue third-party without involvement of injured worker – Pennsylvania

An employee of Reliance Sourcing, Inc, which was insured by The Hartford, was standing in the parking lot of Thrifty Rental Car when she was struck by a rental vehicle. The Hartford paid over $59,000 in medical and wage benefits and sought to sue the responsible parties for damages. The employee did not join in the insurer’s action, did not assign her cause of action to the insurer, and did not seek to recover damages independently.

While the defendants argued The Hartford had no independent ability to commence a subrogation claim directly against them, The Hartford argued it had filed the suit “on behalf of” the employee. In a divided decision, the Supreme Court ruled that absent the injured employee’s assignment or voluntary participation as a plaintiff, the insurer may not enforce its right to subrogation by filing an action directly against the tortfeasor. – The Hartford Insurance Group on behalf of Chunli Chen v. Kafumba Kamara, Thrifty Car Rental and Rental Car Finance Group.

Widow denied benefits for husband’s pancreatic cancer – Tennessee

In Alcoa v. McCroskey, the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel ruled that a widow failed to prove her husband’s cancer was caused by his occupational exposure to coal tar pitch, affirming the decision of a trial judge. The judge found Alcoa’s expert to be more persuasive than the widow’s expert, who relied upon a single medical article, yet that article expressly noted its evidentiary deficiencies. The employer’s expert testified that the employee possessed recognized risk factors for the development of pancreatic cancer that were wholly unrelated to his work exposure to coal tar pitch.

Department-approved settlement not sufficient to compel treatment – Tennessee

In Hurst v. Claiborne County Hospital and Nursing Home, a paramedic was injured in an ambulance accident and also alleged a psychological injury from an October 2000 incident when she encountered a severely abused infant. The claim was settled, but the agreement only addressed her psychological injury. No reference was made to the ambulance accident.

After the settlement was finalized, she filed a new claim seeking benefits for the injuries incurred in the ambulance accident. She settled the claim in exchange for the payment of permanent partial disability benefits and the promise of payment for future medical directly related to her injuries. The Department of Labor and Workforce Development signed off on the settlement, not a judge. Seven years later, she filed a motion to compel payment for medical care which a trial judge granted.

On appeal, the hospital argued that the judge lacked jurisdiction since there was no court order awarding her a right to medical treatment for her physical injuries. The Supreme Court of Tennessee’s Special Workers’ Compensation Appeals Panel found the version of the Workers’ Compensation Law applicable to the 2001 car accident did not provide any mechanism for the enforcement of a department-approved agreement that had not been approved by a judge.

Worker loses benefits for failure to attend FCE sessions – Virginia

On three occasions over a four-month period of time, an employee cancelled a scheduled (and rescheduled) functional capacity evaluation (FCE) session. The employer filed a request to terminate benefits. Although the worker did appear for a FCE one week after the hearing, the worker took no action in the nearly seven-month period between the time the employer filed the request and the date of the hearing. In DeVaughn v. Fairfax County Public Schools, the Court of Appeals upheld the decision of the Workers’ Compensation Commission that there were no mitigating circumstances excusing her lack of effort and no basis for a finding of good faith.

Drivers failure to chock wheel nixes benefits – Virginia

In Callahan v. Rappahannock Goodwill, an appellate court affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated safety rules when he failed to chock the wheel on the employer’s truck during a stop and, hence, could not receive benefits for the injuries he sustained. The record supported that the safety rules were communicated through several methods to the driver and the physical evidence supported the finding that the wheels were not chocked.

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

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

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