Things you should know

Funding package extends TRIA, eliminates Cadillac Tax

The federal funding package signed by President Donald Trump in late December includes a seven-year extension of the Terrorism Risk Insurance Program (TRIA). The Cadillac tax, an excise tax on high cost employer-sponsored health plans, which was a part of the Patient Protection and Affordable Care Act (ACA) was permanently repealed.

Medical and indemnity payments increase with age of worker: WCRI

A recent study from the Workers Compensation Research Institute (WCRI) found little difference in injury rates and outcomes for workers regardless of their age, with rates highest for workers aged 19 and younger, followed by workers aged 55 to 65. Younger workers are more likely to suffer from struck-by injuries or cuts and older workers more likely to suffer from falls and fractures.

The key differences are in payments per claim and lost time. Payments per claim steadily increased up to age 64, with permanent partial disability/lump sum payments averaging a little more than $10,000 per claim for younger workers, climbing to an average of nearly $25,000 for workers aged 60 to 64. Average duration of temporary disability benefits plateaued at age 45 at 24 weeks compared with nine weeks for the youngest workers.

There was a slightly more than 10% chance to have seven days of lost time at 36 months of maturity for workers aged 15 to 19 and a 31% chance for workers 65. Indemnity payments for workers aged 60 – 64 averaged $22,000 compared to under $5,000 for younger workers.

For the report.

Fatal injuries increase: BLS

Workplace fatalities increased from 5,147 in 2017 to 5,250 in 2018, but the fatal occupational injury rate held steady at 3.5 per 100,000 full-time equivalent workers according to the Bureau of Labor Statistics. Fatalities from transportation remained the most frequent fatal occupational injury, accounting for 40% of occupational deaths. Workplace violence deaths increased 3%, including a 12% increase in suicides, and unintentional overdoses also increased. Fatalities from falls decreased 11% after reaching a 26-year high in 2017 and contact with objects and equipment fatalities declined 13%.

NCCI launches online comp court case tool

Court Case Insights,” a new resource tool from the National Council on Compensation Insurance (NCCI), provides information and interpretations of court cases reported by NCCI’s legal team.

Virginia Beach mass shooting results in 450 comp claims

More than 450 city workers have filed workers’ compensation claims following a mass shooting at the Virginia Beach city offices in May that left 12 dead and six injured. Many of the claims are for mental stress.

State News

California

  • The new reporting requirements for Cal/OSHA went into effect Jan. 1. AB 1804 directs employers to immediately disclose incidents via telephone or through a new online portal. Employers may continue to send incident reports by email until the agency launches the new site.

Florida

  • The maximum weekly benefit level rises to $971, up $31.

Illinois

  • Governor signs amendments (SB 1557) to The Cannabis Regulation and Tax Act to clarify workplace drug testing and other issues, including protections for an employer’s drug testing policy.
  • Legislation regulating the use of artificial intelligence (AI) in hiring practices went into effect Jan. 1.
  • The Workers’ Compensation Commission is reminding stakeholders that it has proposed a new rule, required by Senate Bill 94, that specifies how an insurer must send a complete explanation when medical bills are denied.

Massachusetts

  • new study by the Department of Health of Workers’ Compensation Data aims to help identify priorities for reducing injuries and illnesses among private workers. One finding shows that health care continues to be one of the most dangerous types of work in the state, and violence against health workers is one of the leading causes of injuries.

Missouri

  • The Department of Commerce and Insurance has recommended a 1.6% decrease in workers compensation insurance loss costs for 2020. The change is one of the smallest in the country and the smallest decrease in recent years.

New York

  • The Workers’ Compensation Board has published FAQs relating to the drug formulary.
  • The law prohibiting employers from asking applicants about their salary histories went into effect Jan. 6.

Tennessee

  • The insurance commissioner approved a 7.1% overall loss cost decrease for 2020, lower than the recommended 8.2% from NCCI. The reduction will become effective March 1, 2020.

Virginia

  • The Corporation Commission has approved an overall loss cost decrease of 10.7% for the voluntary market and an 8.4% decrease for the assigned-risk market, effective April 1.
  • The State Corporation Commission (SCC) has approved revisions to the premium levels that will lower the overall premium level for the industrial, federal, surface and underground coal mine classifications in the voluntary market and assigned risk plan. The changes become effective April 1.

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

Legal Corner

Workers’ Compensation

Privette doctrine protects film studio from personal liability suit – California

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

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

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

Injuries incurred during employer-sponsored bowling event compensable – Florida

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

Daunting burden of proof for toxic exposure nixes claim – Florida

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

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

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

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

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

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

Award for amputation insufficient – Indiana

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Surveillance nixes continuation of benefits after 18 years – Pennsylvania

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

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

Two conditions must be proved for benefits – Virginia

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

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

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

Pennsylvania – First state ruling on termination for medical marijuana

In Pamela Palmiter v. Commonwealth Health Systems Inc. et al, the Court of Common Pleas of Lackawanna County in Scranton held that a worker terminated for her medical marijuana use can pursue litigation against her former employer under the state Medical Marijuana Act’s anti-discrimination provisions. The employee was a medical assistant, who was prescribed marijuana by her physician for chronic pain, migraines, and persistent fatigue.

When her original employer was taken over by Franklin, Tennessee-based Commonwealth Health, she failed a drug test and was advised she could not continue employment.

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

Culture Issues: Having a Good Culture is More than being OSHA & HR Compliant (Benchmarking Your Culture)

If you cannot measure it, you cannot improve it.” – Sir William Thomson (Lord Kelvin).

Sure, you can think you’re improving something, but unless you know what the problem was in the first place you can’t truly fix it, and if you don’t truly fix it your improvement is nothing more than band-aid surgery. For example, a baseball player is in a deep slump and can’t hit a lick. Suddenly he’s goes four for five in a game and thinks he solved his problem. But what caused the problem? Without analyzing and benchmarking what he’s been doing all along, i.e. the angle of his bat, how high he holds his hands, the all-important “launch angle,” he will not have a true measure of if he is on the right track or just “having a good day.”

This is not uncommon in the business world. Let’s take for example your experience modifier, which is one of the biggest drivers of an employer’s workers’ compensation premium. The lower your experience modifier is the lower your premium will be.

Your experience modifier is based on your data, total claim dollars and audited payroll amounts over a three-year period.  Unfortunately, most insurance agents will come to you and say: “You have a 0.94 experience modifier. That is great! You are getting a credit of 6% for a great loss history.” In other words, your company is making money. Therefore, you must be stressing to your employees to be job safety conscious. But that’s not automatically the case.

Many times a business owner believes because they are making money they have a good culture, so all is good.  However, when they conduct an analysis, and do a deep dive into the all-important data points, they can see that there are issues within the company that is holding them back from real growth, productivity, accountability and profitability. From making real money.

To Continue Reading: Construction Today Magazine

OSHA alert: Form 300A deadlines approaching

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. The information can potentially be used to target inspections; therefore, employers should carefully ensure they submit accurate records.

Two important dates are approaching:

Form 300A posting deadline: February 1, 2020

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, 2020, and kept in place until April 30.

For the forms

For access to Online OSHA 300/300A/301 reporting software: OSHA 300 Software

Form 300A electronic submission deadline: March 2, 2020

Under the electronic record-keeping rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must submit the form electronically to OSHA by March 2, 2020, using the Injury Tracking Application on OSHA’s website. OSHA began accepting forms on Jan. 2, 2020.

Remember, not all establishments with 250 or more employees need to submit their OSHA 300A data electronically. To review which establishments are exempt, click here.

Important note: In reporting 2019 data, establishments must now provide their Employer Identification Numbers (EIN). You’ll want to have that ready as you go to fill out the Injury Tracking Application.

What has to be recorded?

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 2019 include:

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 2019, companies required to maintain records still must post (and electronically submit, if applicable) 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.

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

Things you should know

BLS report on injuries and illnesses

Nonfatal occupational illnesses and injuries held steady in 2018 at 2.8 per 100 workers, marking the first time since 2009 that they did not decline, according to the Bureau of Labor Statistics (BLS). The total number of nonfatal workplace injuries and illnesses reported by private industry employers also remained unchanged last year compared to 2017, at 2.8 million. For the first time, the report included the number of visits to medical treatment facilities for nonfatal occupational injuries that required days away from work, which totaled 333,830 cases. Just over 39,000 of those involved in-patient hospitalization.

Retail was the only industry to report an increase in total recordable cases, although subsectors of other industries also saw increases.

Slips and falls mean high comp payouts in retail

Retail industry workers miss an average of 24 days of work due to injuries, according to a report by AmTrust Financial Services Inc. The highest claims payouts in retail were attributed to injuries from slips or falls from ladders or scaffolding at an average of $21,000 per claim; strains or repetitive motion injuries, averaging $14,000 per claim; and motor vehicle collisions, averaging $13,900 per claim. Nearly a quarter of all payouts were associated with lifting injuries.

Among retailers, the most hazardous classes included meat, fish or poultry retailers, hardware stores, automobile parts and accessories stores, and barbershops or hair styling.

New report on work-related MSD’s in construction

recent report from the Center for Construction Research and Training (CPWR) finds that although work-related MSDs in construction have declined, the number of days away from work (DAFW) has increased. DAFW grew from eight in 1992 to 13 in 2017.

The report also includes resources to help reduce MSDs.

New government guidelines address weaning patients off opioids

The CDC’s guidelines on opioid prescribing three years ago were well received by the worker compensation sector. New guidelines, issued by the U.S. Department of Health and Human Services on Oct. 10, are meant to give doctors a better grip on tapering off opioids, do not call for eliminating them from a patient’s care when “the benefit of using opioids outweighs the risk,” and provide “advice to clinicians who are contemplating or initiating a change in opioid dosage.”

Incentives for wearing tracking devices can trigger creative cheating

recent article in the Huffington Post suggests that employees get ingenious when they fall behind in meeting their targets. Strapping the tracker to the pet hedgehog, giving it to their children to wear, or putting it in a sock in the dryer (a permanent-press cycle is about 10,000 steps) and letting it roll are some of the ways they’ve gamed the system.

EPA modifies regulations for chemical storage

The Risk Management Program Reconsideration Rule, removes the requirement that companies publicly disclose the chemicals stored on their grounds, rescinds third-party audits and incident investigation root cause analysis, and mandates and modifies emergency planning and response requirements.

Early PT reduces visits and costs

Injured workers who start therapy within three days of injury require 38 percent fewer physical therapy visits to achieve successful outcomes, according to a white paper by One Call, a healthcare management company. “However, if an injured worker starts conservative care more than 30 days post-injury, the time to discharge increases from less than three weeks to nearly six weeks.”

Three new resources to help manage the use of nanomaterials

The Center for Construction Research and Training (CPWR) released three new Toolbox Talks, each in English and in Spanish, to help the construction industry manage the potential dangers of nanomaterials:

  • Identifying Nano-Enabled Construction Materials
  • Introduction: Nano-Enabled Construction Materials
  • Prevent Exposure: Nano-Enabled Construction Materials

New video series aimed at raising worker awareness of MSDs

A new virtual toolkit from the European Agency for Safety and Health at Work, also known as EU-OSHA, consists of a series of videos aimed at helping workers understand their risk of musculoskeletal disorders and how to prevent them. Each of the 14 videos in the Understanding Musculoskeletal Disorders toolkit features Napo, an animated 3D character.

Illicit drug tool kit for first responders

A new virtual toolkit from NIOSH is intended to help protect first responders from exposure to illicit drugs, including fentanyl.

State News

California

  • The Insurance Commission lowered the average advisory pure premium rate benchmark to $1.52 per $100 of payroll, effective Jan. 1, 2020 from $1.99 per $100 of payroll in July 2019.
  • AB5, which changes the criteria used to classify employees and independent contractors, goes into effect Jan.1, 2020. Some estimate that nearly 2 out of 3 workers who are classified as independent contractors will be affected.
  • The Department of Industrial Relations, Division of Workers’ Compensation may be delaying injured workers’ access to benefits and increasing costs to employers, according to a state audit report that found the division does not have enough qualified medical examiners to handle caseloads.
  • The Division of Workers’ Compensation reminds claims administrators that report of claim counts for calendar year 2019 is due April 1.

Florida

  • The 7.5 percent rate reduction demanded by the Office of Insurance Regulation will take effect Jan.1.

Illinois

  • The Cannabis Regulation and Tax Act (“CRTA”) goes into effect January 1, 2020 and the state took the additional step of amending the Right to Privacy Act to include cannabis within the definition of lawful products. This prohibits employers from taking adverse actions (refusing to hire, terminating, demoting) against employees because they use a lawful product while not at work. The CRTA sets forth several factors regarding the discipline or discharge of an employee.
  • The Workplace Transparency Act (“WTA”) goes into effect January 2020 and bars employers from unilaterally requiring that a current or prospective employee waive, arbitrate, “or otherwise diminish” existing or future claims, rights, or benefits related to unlawful discrimination, harassment, or retaliation.
  • The average medical payment per claim with more than seven days of lost time was more than 15 percent higher than the median of 18 states studied, according to a recent study by the Workers Compensation Research Institute (WCRI).

Minnesota

  • A new regulation provides that workers may be eligible for vocational rehabilitation services if they need help returning to work after an injury and if their employer cannot meet their work restrictions. A rehabilitation invoice penalty warning has been added to its state workers’ comp policies. Claims administrators have 30 days to pay or deny rehabilitation services. If they do not meet this deadline, they could be fined up to $2,000.

Missouri

  • The Division of Workers’ Compensation announced that the supplemental surcharge for the fund will drop from 3% to 2% starting Jan. 1. The supplemental surcharge is billed quarterly and is based on net premiums.

Nebraska

  • Legislative bill 418 states that if a workplace injury results in a death of an immigrant, the consular officer of the nation in which the employee is a citizen is regarded as the sole legal representative of any dependents residing outside of the U.S. Prior to final settlements, non-resident dependents may file with the Workers’ Compensation Court a power of attorney designating any suitable person residing in the state to act as attorney.

    The bill also states that service providers, collection agencies and creditors cannot attempt to collect a debt from an injured worker or their spouse for treatment of a work-related injury if the matter is pending in the Workers’ Compensation Court.

New York

  • The drug formulary goes into effect December 5. Any new prescription must be for a formulary drug, and a provider must obtain prior authorization for any non-formulary drug before writing a new prescription.
  • The Workers’ Compensation Board has dropped the assessment rate on employers for 2020 to 12.2% from 12.6% in 2019. The assessment is used to fund the administration of the workers’ compensation system, and to fund benefits paid to volunteer firefighters and ambulance workers.

North Carolina

  • The Industrial Commission has formed the Criminal Investigations and Employee Classification Division to focus on the misclassification of employees and premium fraud.

Pennsylvania

  • The Supreme Court ruled that the fluctuating workweek (FWW) pay method is not a proper method of overtime pay calculation under the Minimum Wage Act (PMWA). Employers using this pay method for non-exempt, salaried workers should take immediate action to review and revise their compensation method for these employees.
  • Beginning in October 2020, employers in the construction industry will be required to use E-Verify, the federal government’s web-based program that allows employers to verify an employee’s work-authorization electronically.

Virginia

  • The WCRI reports that reimbursement for physicians and other providers dropped 14% from 2017 prices after the fee schedule took effect in January 2018. There were 36 states in the study and the state moved from sixth-highest in 2017 to 12th, and was the only state that showed a significant decrease in prices for professional medical services.

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

OSHA watch

Few changes in Fall 2019 regulatory agenda

The Department of Labor’s regulatory agenda, released Nov. 20, has few changes from the Spring agenda.

Final rule stage

Added to the final rule stage is Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work, which stems from a September 2014 settlement between OSHA and the Association of American Railroads. The other three in the final rule stage are carryovers from the spring:

  • Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records
  • Technical Corrections to 27 OSHA Standards and Regulations
  • Exposure to Beryllium to Review General Industry Provisions

Proposed rules

A rule on communication tower safety has moved to the proposed rule stage from the pre-rule stage. A pair of regulations has been added to the list of standards in the proposed rule stage. An NPRM of an update to the Safety Standard for Powered Industrial Trucks standard, which presently is based on ANSI’s 1969 safety standard, could be issued as early as January. Also, an NPRM clarifying regulatory language in the 2016 final rule on walking-working surfaces is expected by April.

BLS data may shed a light on future enforcement priorities

BLS recently released the injury and illness data for 2018. While injury and illness rates remained the same as in 2017, some industries had increases. The retail trade industry saw an increase in its total recordable rate from 3.3 in 2017 to 3.5 in 2018. Similarly, the agriculture, forestry, fishing and hunting industry saw its rate increase from 5.0 to 5.3.

The data drills down further to subsections. The highest subsector rates were pet care services at 11.4, veterinary services at 10.4, steel foundries at 10.2, and skiing facilities at 10.

Preventing cold stress and injuries from other winter hazards

Two resources are available:

Revised webpage on radiation safety

The revised webpage provides information on how to recognize and control ionizing radiation hazards.

New bulletin on shipyard hazards

A new Temporary Worker Bulletin focuses on shipyard safety.

Offshore renewable energy facilities responsibility of Department of Interior

The Department of the Interior will oversee workplace safety and health at offshore renewable energy facilities on the Outer Continental Shelf, according to a policy statement published in the Oct. 18 Federal Register.

Recent fines and awards

Massachusetts

  • The Connecticut Department of Labor cited Whitmore Poultry, based in Orange, for more than 500 violations of misclassifying employees as independent contractors and fined the company $90,000. The violations represented each worker for each week they performed work.

Missouri

  • Blue Nile Contractors Inc., based in Birmingham, was cited for failing to protect employees from trench collapse and electrical hazards. The company faces $210,037 in penalties.

New York

  • In Secretary of Labor v. Casale Construction Services Inc., an administrative law judge of the Occupational Safety and Health Review Commission rejected the construction company’s contention that its repeat safety citations should be vacated on the basis they were due to employee misconduct. Two citations carrying penalties of nearly $25,000 were upheld.

Pennsylvania

  • The Connecticut Department of Labor cited Five Brothers 1, based in Sunbury, for more than 600 violations of misclassifying employees as independent contractors and fined the company $180,600. The violations represented each worker for each week they performed work for Five Brothers 1. The company was also cited for failing to maintain workers’ compensation.

For additional information.

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

OSHA reiterates that online safety training may not meet requirements

In a standard interpretation issued earlier this year, OSHA answered the question:

Are online training programs acceptable for compliance with OSHA’s worker training requirements?

Interestingly, this standard interpretation is very similar in wording to one issued 25 years ago. While the agency acknowledges that online training is a useful component of an overall training program, it alone is not compliant. To be compliant, it must have an interactive component: employees must be able to ask questions of, and receive responses from, a qualified trainer in a timely manner. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” according to the document.

OSHA noted that one way for the employer to give workers this opportunity in the context of computer-based training is to provide a telephone “hotline” so that employees will have direct access to a qualified trainer at the time they are taking the online training. But even that is not considered optimum by the agency in regard to certain kinds of training.

“Equally important is the provision of sufficient hands-on training because it allows an employee to interact with equipment and tools in the presence of a qualified trainer, allows the employee to learn or refresh their skills through experience, and allows the trainer to assess whether the trainees have mastered the proper techniques.” Supplementing online training with hands-on training, such as how to use a tool or don PPE, is critical.

The agency also addressed the use of safety training videos and their policy is essentially the same as that for computer-based training. OSHA urges employers not to relying solely on generic, “packaged” training programs in meeting their training requirements as site-specific elements should be included, and to the extent possible the training should be tailored to employees’ assigned duties. They also emphasized that if videos are used, an interactive component must be provided that allows the opportunity for employees to ask questions of the trainer.

It also emphasized that employers must review specific OSHA standards and related guidance to determine what is required in specific situations.

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

Workplace safety: an untapped tool to attract and retain skilled workers

It’s easy for employers to be complacent about Workers’ Compensation when rates are declining and workplaces are safer overall. There are more pressing business matters in today’s competitive market, such as attracting and retaining skilled and committed workers. But failure to relate the two is a lost opportunity and complacency is a slippery slope to higher costs.

A strong safety record reflects positively on the quality of management, supervision, and all employees. While there are individual and generational differences in what attracts workers to a company, there are common denominators. Trust, respect, involvement, clear goals and expectations, engaged management, collaborative working environment, and recognition are regulars on the lists of most desirable workplace characteristics. All of these are integral to a sustainable safety culture.

There is one value everyone can share: to go home without an injury. Use it to tell your story. While the message, “we value and care about our employees,” is often boasted, it’s met with skepticism. The opinion that production and profit trump safety is still pervasive among many employees.

To combat this attitude, safety must become everyone’s responsibility. Management must walk-the-talk and model the safety behavior they expect from employees, as well as empower employees to voice their concerns and take it upon themselves to improve safety. If an incident occurs, the focus is not on blame, but on the worker’s full recovery and a cooperative effort to improve processes to prevent future occurrences.

With a strong safety culture, employers have a credible way to demonstrate they value, trust, and care about their employees. Here’s how to use it to give yourself an edge:

For recruitment:

  • Communicate that safety is a core value by personalizing the message. Don’t just talk about metrics, but how employees are valued, respected, and engaged
  • Explain the role employees have in safety and how employees are trusted to do the right thing
  • Describe how orientation training truly reflects what happens in the field/plant, occurs before they even set foot on the job, and how training continues throughout the year
  • Share how employees are rewarded or recognized for making safe behaviors and reporting incidents or near misses
  • Tell how your recovery at work program reflects the company’s values with real stories

For retention:

  • Focus on successes and recognize and reward safe behavior
  • Continually encourage reporting incidents and near misses
  • Use safety to build teamwork and strive for excellence
  • Take an active role in an injured worker’s treatment and recovery. Let them know their recovery is a priority by your actions
  • Reinforce there are no acceptable trade-offs between safety and productivity and that both are everyone’s responsibility
  • Encourage workers to speak freely about hazards and make suggestions for controlling risk

It’s important to recognize that employer complacency will filter down to employees. This can lead not only to a lax attitude about safety and an increase in injuries, but also fewer referrals. Word-of-mouth, as well as social media, can make or break recruitment efforts.

Hiring and retaining the right workers for the right positions

It takes work to maintain a strong safety culture and it begins with the hiring process. While making safety part of the recruiting process enhances the possibility of safety-conscious applicants, employers must be sure that they hire employees who are physically and mentally able to perform the job they are being hired to do.

A compliant way for employers to find out whether an applicant can do the job safely is to implement the Conditional Offer of Employment and Post-Offer/Pre-Placement Medical Questionnaire. When you hire someone who is not capable of doing the job, it’s not a question of if, but rather a question of when they are going to suffer an injury. Employers are less able to bear the burden of employees losing time today than at any time in the recent past.

With Workers’ Comp on the priority backburner, it’s easy to forget about including it in onboarding new employees or training current employees. Yet, the vast majority of employees who suffer an injury at work will find themselves inside the workers’ comp system for the first time. Even a minor injury may seem like a major occurrence because it is unfamiliar and frightening. “What am I going to have to pay?”, “How am I going to feed my family?”, “What do my co-workers think?”, and more fill their mind. When you communicate to workers how the workers’ comp process works, you can alleviate doubts and build confidence.

Getting injured employees back to work is always near the top of the list for best claims practices. While it’s been proven that Recovery at Work programs have an economic benefit, the human element is equally important. By providing support, encouragement, and opportunity, the employer makes the employee feel valued, protected, and confident appropriate work will be available.

Culture has been at the top of safety and health issues for more than a decade. Rethinking recruitment and retention strategies around safety may be the solution to one of the most pressing business matters today.

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

Early workplace injuries predictor of frequent filers

Workers injured in the first six months of their employment are more than twice as likely to have three or more lost-time injuries during their duration of employment than other workers, according to a recent study published in the American College of Occupational and Environmental Medicine. For each year employed before the first lost-time injury, the probability of having three or more lost-time injuries decreased by 13%, according to the study.

The study included 7,609 lost-time claims at Johns Hopkins Health System and University from 1994 through 2017. The injuries occurred among 5,906 workers; 84% were health care workers, and the remainder were academic employees. Although only 49 workers (0.83%) had five or more claims, they accounted for 3.5% of claim costs, or $4.8 million. The workers in the study had an average length of employment of 15.7 years.

Other studies have shown that new employee risk of injury is higher than other workers. Earlier research from the Toronto-based Institute for Work & Health (IWH) found that employees in their first month on the job have more than three times the risk for a lost-time injury than workers who have been at their job for more than a year.

Neither study delved into the issue of “why.” Common speculation is that training and mentorship were inadequate or that hiring practices are the root of the problem. It makes sense because newness is the common thread. Workers performing unfamiliar tasks in a new work environment with less knowledge and awareness are at a more significant risk regardless of their age, according to the IWH.

Yet, assumptions should not be made and each company must analyze their own data. Begin by looking at the data on the injuries incurred in the first six months of employment. Was the hiring process rushed or inadequate in anyway? Was there a post-offer physical exam?

Assess the effectiveness of training and acclimation to the job. Were new workers given real-life practice, a clear message about safety, site-specific information, allowed to start in low-risk situations and advance to higher-risk work? While people learn differently, the more they can perform the work, the better they become.

Review the incident investigations to look for commonalities – location, department, job function/procedure, equipment and so on. How effective was the return-to-work experience?

How you intervene depends on what you learn. It may be that you need to shore up your training program, implement a mentorship approach, or alert the supervisor to provide additional oversight so the employee works more safely. If there are “red flags” such as the injured worker immediately hiring a lawyer, conflict with supervisor or other workers, insufficient detail about injury/accident, no witnesses, failure to keep medical appointments, and so on, you should consult your attorney. In most cases, the injuries of new employees are legitimate, but new employees with fraud “red flags” require special attention.

The message to employers is that there is an association between early employment injuries and risks for multiple injuries. Repeat claims are costly. A thorough analysis is an opportunity to develop preventive measures or cut loose a potential serial offender.

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