Things you should know

Utility sector workers at higher risk of serious injuries: Study

Employees in the utility sector are at higher risk for serious injuries and fatalities than workers in other industries such as construction, manufacturing and mining, according to a study conducted by workplace safety consultancy DEKRA North America Inc. Water utilities have the highest SIF exposure rate at 42%, followed by electric utilities at 32%, and gas utilities at 29%. Overall the utilities sector has a 32% SIF exposure rate, which is seven points higher than the all-industry SIF rate of 25%. Motor vehicle incidents were responsible for most hazards at 30%, followed by line of fire or struck by incidents at 28%.

Older construction workers at increased risk for hearing loss: study

More than half of former construction workers have experienced hearing loss, and smoking, noise, and solvents can exacerbate the condition, according to a recent study by the Center for Construction Research and Training (CPWR).The researchers found that 58 percent of the former construction workers had some form of hearing loss and those who worked for more than 30 years were nearly four times more likely to experience hearing loss than workers with fewer than 10 years on the job.

The researchers recommend that prevention efforts center on reducing worker exposure to noise, solvents and smoking. The study was published Feb. 28 in the American Journal of Industrial Medicine.

Treatment costs for injured workers vary widely by state: Study

Prices paid for a similar set of medical services varied significantly across states, ranging from 26% below the 35-state median in Florida to 158% above the 35-state median in Wisconsin in 2017, according to a study released by the Workers Compensation Research Institute (WCRI). The study compares medical prices paid in 35 states and tracks price changes in most states over a 10-year span from 2008 to 2017.

States without fee schedules for these services had higher prices paid compared to states with fee schedules (39 to 168 percent higher than the median of states studied with fee schedules in 2017).They also found changes in prices paid for professional services varied across states, from a 17 percent decrease in Illinois to a 39 percent increase in Wisconsin.

Guide intended to help workers deal – or help others deal – with depression

The Canadian Institute for Work and Health has published a guide intended to assist workers who experience depression or support those coping with it. IWH states that the guide is applicable “to the entire workplace regardless of sector or role,” including individuals with depression, managers, co-workers, human resources staff, union representatives and worker representatives.

New CSB fact sheet outlines safe practices for hot work

The Chemical Safety Board recently released a fact sheet that offers several best practices for staying safe when performing hot work.

American Chemistry Council creates PPE infographic for auto refinishers

In partnership with OSHA, the American Chemistry Council has published an infographic to encourage workers in the automotive refinishing industry to wear the correct personal protective equipment.

NTSB releases tip card on fatigued driving in commercial bus industry

The National Transportation Safety Board has released a safety tip card aimed at reducing fatigue among commercial bus drivers. The card – designed to be stored above a driver’s visor – highlights issues of fatigue in transportation and its effects, as well as lessons learned from crash investigations. It offers tips for both drivers and bus company operators.

State News

California

  • State Compensation Insurance Fund has reduced the number of opioid prescriptions for injured workers by 60% to 23.7 million since launching its opioid-reduction program in 2014.
  • Cal/OSHA reminded employers to closely observe their employees for signs and symptoms of heat illness and instruct workers to take preventative cool-down breaks in the shade as temperatures rise.
  • Workers’ Compensation Institute said there was little change in the number of independent medical review determination letters and decisions issued in the first three months of 2018 compared to the first quarter of 2017.
  • The maximum temporary total disability benefit will increase nearly 3%, to $1,251.38 per week from $1,215.27 effective Jan. 1, 2019, per the California Division of Workers’ Compensation.

Georgia

  • Starting this month, the Board of Workers’ Compensation will begin phase two of its integrated claims management system, which utilizes new electronic data interchange standards. The board will soon grant access to insurers, self-insured employers, group funds, and claims adjusters to learn how to use the system. Watch the website for details.

Indiana

  • The workers’ compensation board has released new application forms and guidelines for self-insurers, and the agency is urging employers to make sure they complete the form in full or they will not be approved.
  • Workers’ Compensation Board put practitioners on notice that it expects to adopt a new protocol for submitting settlement agreements in the next 30 to 45 days. In the meantime, it asked that practitioners start using its new checklist to prepare settlements for submission for board approval.

Illinois

  • Beginning July 2, all parties in workers’ compensation claims cases will receive notice through electronic means and the Workers’ Compensation Commission is urging injured workers, attorneys, and employers to submit email addresses. Attorneys and injured workers representing themselves can submit email addresses with a form available at the commission’s website. Even if a party already has an address on file with the agency, the commission is building its database anew and asks that email addresses be submitted again.

Michigan

  • The application form, Form WC-104C for mediation and hearing requests was revised to make it easier to list additional parties involved in the case.

New York

  • Workers’ Compensation Board is proposing a medical fee schedule that would increase payments by 5% overall, which would affect medical, podiatry, chiropractic, and psychological treatment. This would be the first increase in fees since 1996.
  • The New York Assembly passed a bill that would let acupuncturists be reimbursed for treating injured workers.

Tennessee

  • The average total cost per workers’ compensation claim decreased 6 percent in 2015, reflecting in part the impact of reforms enacted in 2013, according to a WCRI study.

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

Legal Corner

ADA
Disqualifying applicants based on preemployment nerve conduction tests leads to $4.4 million settlement

Chicago-based Amsted Rail Co., a steel casting manufacturer, has agreed to pay $4.4 million to settle a U.S. Equal Employment Opportunity Commission class disability discrimination lawsuit for allegedly disqualifying job applicants based on the result of a nerve conduction test for carpal tunnel syndrome rather than conducting an individualized assessment of each applicant’s ability to do the job safely. The court found that the test was unlawful and had little or no value in predicting the likelihood of future injury.

In the settlement, Amsted Rail agreed to discontinue the process and compensate affected applicants for lost wages as well as conduct training and allow the EEOC to monitor hiring to assure compliance with the ADA.
Workers’ Compensation
Signing a preprinted compromise and release (C&R) form to settle a workers’ compensation claim doesn’t relieve liability for claims outside workers’ comp – California

In Camacho v. Target Corp., an appellate court found a state trial court erred when it granted summary judgment to an employer in an employment discrimination case filed by a former employee. The trial court’s decision was based on language in a preprinted Compromise & Release form, which purported to release the employer from liability for “any and all potential claims.” The appellate court noted the purported general waiver was displayed in fine print and it made no reference to any claims beyond the scope of the workers’ compensation claims.

Ruling on five-year statutory cap on the duration of temporary disability benefits stands – California

The state Supreme Court denied review of a 4th DCA decision regarding a statutory cap on the duration of temporary disability benefits. The decision noted that Labor Code Section 4656 simultaneously authorizes a maximum award of 104 weeks of temporary disability payments to a worker who suffers an injury on or after Jan. 1, 2008, and limits payments to a period of disability occurring within five years of the injury.

Housekeeper who tested positive for marijuana denied benefits – Florida

In Brinson v. Hospital Housekeeping Services, a housekeeper fell at work and dislocated her shoulder. Her supervisor drove her to a clinic, where she provided a urine sample pursuant to her employer’s post-accident drug-testing policy.

When she filed a worker’s comp claim, the company contested it. While Florida law provides a rebuttable presumption that the injury was caused by drug use, when a worker fails a post-injury drug test, it also allows a worker to rebut by presenting clear and convincing evidence that the “influence of the drug did not contribute to the injury.”

In a split decision, the court found that the evidence submitted to rebut the presumption of causation was not sufficient to award benefits. Experts testified that drug tests only detect the presence of drug metabolites, but do not conclusively indicate that drugs are active in the bloodstream or have caused impairment.

Co-employee does not have immunity for civil claim related to worker’s death – Florida

In Ramsey v. DeWitt Excavating, an appellate court ruled that the family of a construction worker could not proceed with a tort claim against his employer for a fatal accident, but the family’s claim against a co-employee could proceed. The 20-year-old construction worker was inside a cement-mixing pug mill when a co-worker turned it on.

While the 5th District Court of Appeal noted that employers generally are immune from tort liability for work-related injuries and this immunity usually extends to co-employees, there are exceptions. If the incident is caused by an employer’s intentional tort or if co-employees act with willful and wanton disregard for the well-being of the injured worker, or if they act with gross negligence, the law allows for a civil remedy.

The court found that the risk of injury was apparent; thus, the employer was entitled to summary judgment. However, it concluded evidence suggested the co-employee directed the deceased employee into the pug mill for cleaning and later activated it without checking to see if he was still inside and a jury could find this was gross negligence.

“Similar” specialty not the same as “same” specialty when authorizing a change in doctors – Florida

Under Florida law, an employee can make a one-time request to change treating physicians. In Myers v. Pasco County School Board, a worker who was being treated by an orthopedic surgeon requested a change in providers. The school board made an appointment for her to see a neurosurgeon who also treats spinal conditions, but she did not attend the appointment.

While a judge found in favor of the school board, the 1st District Court of Appeal disagreed.

“A physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because – quite simply – ‘same’ is different than ‘similar,'” the court said.

Evidence chain issues negate intoxication defense – Georgia

A module feeder at a cotton gin was seriously injured when a truck ran into him at a loading dock. In Lingo v. Early County Gin, the company denied benefits based on a post-injury drug test finding of marijuana. When the lab technician who went to the hospital to obtain the urine sample, the injured worker was in surgery and a nurse later returned a sample to the technician.

The technician had no firsthand knowledge of who collected the sample or what protocols were followed.

The case went through a series of appeals. Noting the statutory procedures for specimen collection and testing when an employer attempts to involve the presumption of intoxication, the Court of Appeals ruled against the employer. A sample must be obtained by a physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner or a certified paramedic and while it was reasonable to assume that the sample was taken by a nurse in the operating room, “assumptions based on speculation are not evidence.”

Work comp lien from third party and the limited liability under Kotecki cap are separate – Illinois

In Cooley v. Power Construction Co. (Reflection Window Co.), an employee of a sub-subcontractor (Reflection) suffered injuries on a project. He collected workers’ comp from his employer and filed a negligence action against the general contractor (GC). When the GC filed a claim for contribution against Reflection, it asserted the “Kotecki cap” as an affirmative defense. This refers to an earlier Supreme Court decision that an employer’s liability for an employee’s injury is capped at an amount not greater than the employer’s workers’ compensation liability.

The GC argued that Reflection had waived the defense under either the master agreement, the subcontract agreement or both and a judge included a statement that Reflection’s workers’ compensation lien had also been waived. The appellate court ruled that “the lien and the limited liability under Kotecki are separate concepts.” A waiver of the Kotecki cap defense does not mean there was a waiver of the workers’ compensation lien. If the GC were found responsible for the injuries, then Reflections could recover the workers’ comp payment.

Employee killed by uninsured driver not covered under his company’s uninsured motorist coverage – Indiana

Overturning trial and state appeals court rulings, the state Supreme Court ruled that an employee killed by an uninsured driver under the influence of methamphetamine while mowing his lawn is not covered under his company’s uninsured motorist coverage. The employee was a scheduled driver under the policy who could use a company truck as his primary vehicle for personal and business transportation.

The decease’s estate claimed it qualified for coverage under the policy term, “others we protect”. Contrary to the estate’s claims, neither the declarations pages, nor the policy, nor the (uninsured motorist) endorsement expressly list the deceased as a ‘named insured,’ ‘additional insured,’ or even a protected or covered driver,” said the ruling.

Expert testimony key in cumulative injury cases – Missouri

In Ackman v. Union Pacific Railroad Co., an appellate court denied benefits under the Federal Employers Liability Act, noting the railway worker’s failure to secure expert medical witness testimony linking his alleged cumulative injuries to his job duties. The employee worked as a machine operator and argued he had suffered cumulative injuries from the repeated stress of riding on Union Pacific’s backhoes.

When the employee did not depose medical experts in response to a trial judge’s scheduling order, the company was awarded summary judgment, shifting the burden of proof to the employee. On appeal, the court noted that expert testimony is generally not required when a layperson could understand what caused an injury; but with cumulative injury cases, expert testimony is usually required to establish causation.

Non-injury related medical procedure compensable when reasonable and necessary to treat a work-related injury – Nebraska

In Carr v. Ganz, the Court of Appeals overturned a compensation court’s denial of a worker’s coronary bypass procedure to prepare him for the implantation of a penile prosthesis. The worker fell off of a horse at work, sustaining symphysis pubis and sacral fractures, and a hernia and developed urinary incontinence and erectile dysfunction. He argued he needed a penile prosthesis and could not undergo the surgery until he underwent a heart catheterization.

Ultimately, the company agreed to pay for the heart catheterization, but the employee underwent a coronary artery bypass procedure also, which the employer refused to pay for. The compensation court agreed, but the Court of Appeals ruled that the compensation court applied the “reasonable relationship” standard when it should have used the “medically reasonable and necessary analysis.”

If a medical treatment is medically reasonable and necessary to treat a work-related injury, the treatment is “required by the nature of the injury” and is compensable, even if it is unrelated to the injury.

“Going and coming rule” nixes benefits for train conductor assaulted before her shift – New York

In Rosemary Rodriquez v. New York City Transit Authority, Workers’ Compensation Board, a train conductor was on her way to work and waiting for a train when she was assaulted by a commuter who was upset by her refusal to open the station gate to let him in (without paying). She sustained multiple injuries to her face, head, neck and back.

Based on the “going and coming rule,” the Compensation Board denied the claim and the appellate court concurred, noting that the assault occurred approximately one hour prior to the beginning of her shift and the employer did not require her to utilize public transit to get to her job.

Cannot have both Nonscheduled PPD and Scheduled Loss of Use awards for same accident – New York

In Matter of Tobin v Finger Lakes DDSO, it was ruled that an injured worker may not receive both a scheduled loss of use award and a nonscheduled permanent partial disability award for injuries arising out of the same work-related accident. The worker suffered reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS) and ptosis of the right eyelid entitling him to a nonscheduled permanent partial disability classification, according to the Workers’ Compensation Board, Therefore, it was appropriate to reverse a WCJ’s finding that the vision loss from a work-related injury was amenable to a 100% scheduled loss of use.

Company receives credit for disability benefits paid – North Carolina

In Haulcy v. The Goodyear Tire and Rubber Co., an employee who injured her back did not file a comp claim nor receive treatment. About a year later she experienced pain while working and was diagnosed with a disc herniation and facet arthropathy in her lumbar spine. The Commission concluded the injury was a material aggravation to a pre-existing low back condition. She filed a claim, and worked modified duty for 90 days, which was the maximum allowed by the company. She was off for about four months before she could return to work at full duty. The commission found and the Court of Appeals agreed that she was entitled to benefits for this period, but the company was entitled to a credit against the benefits of $15,521.90 for payments made under its accident-and-sickness disability plan.

Supreme Court clarifies employee classification coverage under the Construction Worker Misclassification Act (CWMA) – Pennsylvania

In Department of Labor and Industry, Uninsured Employers Guaranty Fund vs. Workers’ Compensation Appeal Board (Lin and Eastern Taste), the Supreme Court ruled that the phrase “construction industry” used in the CWMA limits its applicability to workers engaged in work for a business entity that performs construction services. As such, a worker who was injured while remodeling his sister-in-law’s restaurant was not eligible to receive workers’ compensation benefits for his injuries.

While he was doing construction work at the time of his injuries, and the serious injuries rendered him a paraplegic, the Commonwealth Court said his work at the restaurant did not bring him within the class of potential workers who could be deemed “employees” eligible for workers’ compensation benefits under the Act. He was an independent contractor, since no one oversaw the manner and means in which he did his work, and the restaurant was not a construction business.

Supreme Court clarifies and denies use of proceeds from third-party recovery for future medical benefits – Pennsylvania

In Whitmoyer v. WCAB (Mountain Country Meats), the Supreme Court noted that the workers’ comp statute provides that any subrogation recovery the employee collects from a third-party tortfeasor in excess of the benefits already paid by the employer “shall be treated as an advance payment by the employer on account of any future installments of compensation.” Although compensation can refer to both disability benefits and medical expenses, the statue specifically says compensation that is paid in installments.

The Workers’ Compensation Act requires that disability benefits be paid in periodic installments, but not medical expenses and, as such, the recovery cannot be used as a credit for future medical expenses.

Reinstatement of permanent benefits for “Pre-Protz” injured worker – Pennsylvania

In Whitfield v. Workers’ Comp. Appeal B, the Commonwealth Court opened the door to injured workers whose disability ratings were lowered through an independent medical exam (IRE) to petition for reinstatement of benefits. Last summer, the Supreme Court declared the entire IRE process void, in light of the earlier Protz decision, which struck down a statutory requirement that doctors use the “most recent” edition of the AMA’s Guides to the Evaluation of Permanent Impairment in performing IREs.

During the two years between the rulings, injured workers filed petitions seeking to have their status changed from partial disability to total disability because their status had been changed from total disability to partial disability through the IRE process. Whitfield was one such case. While the WCAB and a WCJ denied the change in status, the Commonwealth Court vacated the board’s decision.

The court instead determined that a worker whose status was modified because of an invalid IRE can get total disability status reinstated if he/she credibly testifies that the work-related injury continues and the WCJ credits that testimony over any evidence that an employer presents to the contrary. Medical expert testimony is not required. The worker must file the petition within three years of the last receipt of benefits.

Employer cannot recoup payments for disputed treatment, but doesn’t have to pay fees – Tennessee

In Young v. Sugar Hollow Properties, a workers’ comp settlement required the employer to provide future reasonable and necessary medical treatment related to the injuries. The worker’s doctors requested a treatment that the utilization reviewer did not find reasonable and necessary because the recommendation did not comply with the Official Disability Guidelines and the Department of Labor and Workforce Development agreed.

However, a trial court ordered the employer to provide the treatments and to pay legal fees. When the company appealed, the Supreme Court Special Workers’ Compensation Appeals Panel said the issue of whether the employer was required to provide the treatments was moot because the employer had paid for them. However, the award of associated fees was denied since the worker offered no evidence to establish that the recommended treatments were causally related to her compensable injuries.

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

OSHA watch

Limited extension of the compliance dates for Beryllium Standard

A proposed rule to extend the compliance date for “certain ancillary requirements of the general industry beryllium standard” from March 12 to Dec. 12, 2018 was published in the federal registrar.

However, the proposed extension does not delay enforcement for the following requirements in general industry:

  • Permissible exposure limits (PELS)
  • Exposure assessment
  • Respiratory protection
  • Medical surveillance
  • Medical removal protection provisions
  • Any provisions where the compliance dates in the standard take effect in 2019 and 2020

For the construction and shipyard industries, only the permissible exposure limits and short-term exposure limit are being enforced until there is additional rulemaking.

 

New fact sheet outlines whistleblower protections for workers in nuclear industry

A new “Whistleblower Protection for Nuclear Industry Workers” fact sheet outlines retaliation protection for certain employees who report potential violations of the Energy Reorganization Act or the Atomic Energy Act.

 

New webpage provides safety information on workplace chemicals

The new Occupational Chemical Database compiles information from several government agencies and organizations into one online resource. The webpage includes chemical identification and physical properties, permissible exposure limits (PELs), and sampling information. Chemicals can be searched by name or identification number, or grouped by PEL, carcinogenic level, or whether they pose an immediate threat when inhaled.

 

MIOSHA targets blight removal projects to protect workers from asbestos and other hazards

The Michigan Occupational Safety and Health Administration (MIOSHA) relaunched its state emphasis program (SEP) that increases MIOSHA presence on blight removal projects across the state to address hazards such as asbestos and lead. The SEP will be in effect through February 28, 2019.

 

Enforcement notes

California

  • California OSHA issued six citations and $48,095 in penalties to Tobin Steel Company, Inc., after a worker sustained serious injuries while operating an unguarded press brake machine. Citations include failure to: conduct and document required inspections, test and maintain power-operated presses, train workers on amputation hazards, and provide adequate machine guarding.

Florida

  • Crown Roofing LLC, based in Sarasota, faces $149,662 in proposed fines for exposing employees to fall hazards at a Jupiter worksite.
  • Inspected as part of the National Emphasis Program on Trenching and Excavation, Douglas N. Higgins Inc., a South Florida utility contractor, faces $18,659 in proposed penalties for exposing employees to cave-in and other hazards at a Naples worksite. The agency previously cited the contractor for violations in January 2017 when three employees succumbed to toxic gases while working in a manhole and again in May 2018 after a steel plate fell on and fatally injured an employee.

Georgia

  • An administrative law judge of the OSHRC reinstated a citation and a $7,000 fine against an electrical services company, Smyrna-based Action Electric Co. Inc., after a federal appellate court reversed another judge’s decision to vacate the citation. The judge noted, “An Action Electric employee died from the failure of Action Electric to properly implement (lockout/tagout) procedures for inspection of the cooling machine and counterweight components.”
  • An administrative law judge of the OSHRC affirmed Gainesville-based Prime Pak Foods Inc. safety fines and approved the Secretary of Labor’s request to dismiss the company’s contest notice because it was filed after the 15-day deadline to do so. Prime Pak “argues its neglect is excusable because it was denied advance notice of the citation and the right to have counsel served with the citation,” noted the ruling, which emphasizes that notices are sent “to employers,” per federal legislation.

Maine

  • After multiple investigations and citations, a Maine roofing contractor operating as Lessard Roofing & Siding Inc. and Lessard Brothers Construction Inc. was ordered by the U.S. Court of Appeals for the 1st Circuit to implement a comprehensive safety and training program after receiving repeated citations for exposing workers to falls. The owner, Stephen Lessard, was also ordered to produce substantial documentation that will demonstrate the extent to which he is able to pay $389,685 in outstanding fines.

Michigan

  • An OSHRC administrative law judge vacated a defense contractor’s safety citation and proposed fine after determining officials could not prove negligence in a case involving a stack of heavy boxes containing vehicle parts that fell on a worker. A warehouse employee of Sterling Heights-based General Dynamics Land Systems Inc. was seriously injured when seven crates containing 94-pound struts fell on him from a stack as he was inventorying them.

Minnesota

  • Minnesota OSHA issued eight citations and $366,150 in penalties to Gateway Building Systems, Inc., after a worker suffered a fatal fall from a grain elevator. Inspectors determined that the company failed to: ensure workers were using correct anchorage points, install proper decking and guarding over an expanded platform, and provide overhead protection for workers.

Wisconsin

  • Appleton roofing contractor Hector Hernandez was cited again after inspectors observed employees exposed to falls and other safety hazards at two Wisconsin job sites. Proposed penalties are $120,320.

For more information.

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

HR Tip: NLRB General Counsel issues guidance on employer handbook rules

On June 6, 2018, the National Labor Relations Board General (NLRB) Counsel issued GC Memorandum 18-04, Guidance on Handbook Rules Post-Boeing. The guidance groups the rules into three categories: Category 1 rules are generally lawful, Category 2 rules require an evaluation of the rule on a case-by-case basis using the Boeing standard, and Category 3 rules are unlawful to maintain.

Category 1

During the Obama period, the NLRB was very strict in interpreting employee handbook policies for union and non-union employers. Many rules that would have been scrutinized by the Board are now generally lawful, including:

  • Civility rules. “Behavior that is rude, condescending or otherwise socially unacceptable is prohibited” is an example of a lawful civility rule.
  • No-photography rules and no-recording rules. Rules that ban employees from taking photos, videos, or recorded conversations at work are lawful.
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations. “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the Employer’s goals and objectives is prohibited” is an example of a lawful insubordination rule.
  • Disruptive behavior rules. Disorderly conduct or other bad behavior that disrupts business operations can be prohibited.
  • Rules protecting confidential, proprietary, and customer information or documents. Rules banning the discussion of confidential, proprietary, or customer information are generally lawful. Note: this would not extend to the discussion of employee or wage information.
  • Rules against defamation or misrepresentation. “Misrepresenting the company’s products or services or its employees is prohibited” is a lawful rule.
  • Rules against using employer logos or intellectual property. “Employees are forbidden from using the Company’s logos for any reason” is an example of a lawful rule.
  • Rules requiring authorization to speak for company. A handbook rule requiring authorization to speak for the company or requiring that only certain persons speak for the company is generally lawful.
  • Rules banning disloyalty, nepotism, or self-enrichment. “Employees may not engage in conduct that is disloyal . . . competitive or damaging to the company such as illegal acts in restraint of trade or employment with another employer” is an example of a lawful rule.

Category 2

These rules require individualized scrutiny under the Board’s Boeing framework:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
  • Confidentiality rules that encompass “employer business” or “employee information.”
  • Rules prohibiting disparagement of the employer (as opposed to coworkers).
  • Rules prohibiting or regulating use of the employer’s name (as opposed to the employer’s logo/trademark).
  • Rules restricting employees from speaking to the media generally (as opposed to on the employer’s behalf).
  • Rules banning off-duty conduct that would harm the employer (as opposed to insubordinate/disruptive behavior at work).
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3

These rules are specifically banned:

  • Confidentiality rules regarding wages, benefits, or working conditions.
  • Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employee.

As a best practice, employers should always seek legal counsel when revising its employee handbook.

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

OSHA update: Silica

The respirable crystalline silica in general industry and maritime standard went into effect June 23, 2018. Its provisions establish a new 8-hour time-weighted average permissible exposure limit, action level and associated ancillary requirements. Under the new standard, the PEL now limits worker exposures to 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an eight-hour day.

While a compliance directive on the standard has not been finalized, OSHA has released initial enforcement guidelines and during the first 30 days of enforcement will offer compliance assistance for employers who make a good faith effort to comply with the new standard. OSHA also released a fact sheet on the regulation in February. OSHA’s Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime discusses methods of compliance, such as using engineering and work practice controls, assessing exposure levels, respirator use, medical surveillance, and written exposure plans.

Insights from the first six months of enforcement

Enforcement actions taken in the construction industry, where the standard has been in effect since Oct. 23, 2017, can be a helpful guide to other industries. OSHA estimates that 2.3 million workers are exposed to silica when they are at work and businesses and materials impacted include dental laboratories, railroads, paintings and coatings, hydraulic fracturing for gas and oil, asphalt products manufacturing, jewelry production, refractory products, landscaping, ready-mix concrete, and cut stone and stone products.

According to an article, “What the First Six Months of Silica Enforcement Tells Us” in EHS Today, as of April 23, 2018, OSHA and State Plans that have adopted the silica rule have issued 117 violations, 80% of which are classified as “serious.” The most common violations of the silica standard cited are:

  • 35 cited violations of 29 C.F.R. § 1926.1153(d)(2)(i) for failure to conduct an exposure assessment of worker exposure to respirable crystalline. If an inspector finds an employer has not done an exposure assessment, then one can expect a citation.
  • 31 cited violations of 29 C.F.R. § 1926.1153(c)(1) for failing to adhere to the Table 1 list of equipment/tasks and OSHA’s required engineering and work control methods and respiratory protection. Attorney John F. Martin of the law firm Ogletree Deakins notes that this is surprising because these requirements are not mandatory. He points out that if a construction employer opts not to follow the controls and respiratory protections for the listed equipment and tasks, then it is required to follow the alternative exposure control methods cited, including conducting an exposure assessment.
  • 20 cited violations of 29 C.F.R. § 1926.1153(g)(1) for lack of a written exposure control plan. This includes employers who do not have a written plan at all and others whose plans are not in compliance. The control plans must include four minimum elements describing workplace tasks that involve exposure to silica: engineering controls, work practices and respiratory protection used to limit employee exposure to silica for each task, housekeeping measures used to limit exposure to silica, and procedures used to restrict access to work areas to minimize the number of employees exposed to silica.

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

Studies: Getting a handle on two comp cost drivers: motor vehicle accidents and claim denials

Limiting motor vehicle accident costs

In its 2018 Driver Safety Risk Report, Motus, a Boston-based vehicle management and reimbursement platform, estimates that about 40 percent of vehicle accidents are work-related, while 53 percent of vehicle crash injuries cause employees to miss work, costing employers $56.7 billion in 2017. The costs include medical care, property damage, legal expenses, lost wages, increased insurance, and lost productivity. When an employee has an on-the-job crash that results in an injury, the average cost is $74,000 to the employer.

While the figures are daunting, the company offers these solutions for reducing collision rates by as much as 35%:

  1. Expand driver risk management approach beyond basic Motor Vehicle Record (MVR) checksMVRs aren’t always a good indicator that a person is a safe and competent driver. If a person lives in a city and doesn’t drive much, the chances are they have a stellar driving record. Yet, their road experience is very limited. Employers need to drill down to evaluate the record.
  2. Mandate driver safety programs for all drivers, including those in mileage reimbursement programsOnly 42.6 percent of companies currently mandate driver safety programs for employees in company-owned vehicle programs. That number drops to just 19.5 percent for employees in mileage reimbursement programs. With mobility increasing, driver distraction at an all-time high, and new technology emerging in vehicles every day, training takes on increased importance and should be a top priority for your business.
  3. Consider a fixed and variable rate (FAVR) reimbursement programUnlike the one-size-fits-all car allowance or cents-per-mile reimbursement programs, fixed and variable rate (FAVR) programs reimburse employees for their individualized fixed and variable costs. Fixed costs are constant, but vary from employee to employee and include insurance premiums, license and registration fees, and taxes and depreciation. The variable costs are based on the number of business miles driven and include gas, oil, maintenance and tire wear.Such an approach ensures that the employer can verify that the driver is complying with the insurance coverage requirements and that they are limiting mileage to work-related trips only, “thereby mitigating exposure to costs associated with off-hour accidents.”

Managing claim denials for cost control

While a study by Lockton Cos. L.L.C. found that the number of claim denials for injured workers is increasing, rising from 5.8% in 2013 to 6.9% in 2017, 67% of those initial denials were paid within 12 months. What’s even more disconcerting is the increased cost of the denied claims that were eventually accepted. Based on an examination of 273,000 claims from 150 Lockton clients between 2013 and 2017, denied claims cost 55% more on average at the 60-month mark: $15,694 instead of $10,154 for an accepted claim.

This increased cost is understandable because a worker with a denied claim usually will seek medical care from the primary care physician and the costs will not be subject to a negotiated workers’ comp fee schedule. The authors are not suggesting that companies deny fewer claims but are urging companies to look closely at what is being denied and the process.

“Take a closer look at your company’s converted denial rate, and whether savings from indemnity and medical costs are enough to offset increased expense on denied claims that end up paying out,” note the authors. Look at the claims that were denied and overturned and see if there are common threads. Is it an internal decision or a decision on the part of the carrier? Are they concentrated in one division? Has there been an increase in denial rates and, if so, why? Pressure to reduce costs or increased focus on fraud?

The study revealed the top 10 reasons for claims denials: no medical evidence; no injury per statutory definition; reservation of rights; pre-existing condition; idiopathic condition; intoxication or drug-related violation; non-work-related stress; failure to report accident timely; doesn’t meet statutory definition of employee; and misrepresentation. The rate at which denial was converted to paid varied with the reason. For example, when “willful intent to injure oneself” was the reason for denial, 89% of the claims were converted to paid. For “pre-existing condition,” the conversion rate was 69%.

In every industry, converted denials cost more than non-denied claims, but some industries vary significantly from the overall averages. Healthcare experiences lower average differences, but Administrative and Support and Waste Management and Remediation Services, and Manufacturing incur higher claim costs than the national average.

There were variations by state also. California has a very high conversion rate compared to the national average, whereas Florida and Texas have lower rates. Litigation is also a major factor. According to the study, 70.6 percent of denied lost-time claims will be litigated, which is more than twice the 27.5 percent litigation rate for non-denied lost time claims.

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

Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

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

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

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

 

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

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

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

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

 

Workers’ Compensation
Supreme Court defines Independent Contractors – California

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

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

 

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

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

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

 

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

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

 

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

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

 

Spider bite compensable – Illinois

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

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

 

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

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

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

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

 

Employer cannot be ordered to reimburse for medical marijuana – Michigan

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

 

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

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

 

Supreme Court upholds statutory benefits for Mesothelioma claims – Missouri

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

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

 

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

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

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

 

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

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

 

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

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

 

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

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

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

 

Smoking break injury not compensable – North Carolina

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

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


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

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

 

Coming and going rule nixes foreman’s benefits – Pennsylvania

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

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

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

Things you should know

US Supreme Court upholds use of class action waivers in arbitration agreements

In a 5-4 decision, the Supreme Court ruled that employers can force workers to use individual arbitration instead of class-action lawsuits to press legal claims.


Study: ACA resulted in lower soft-tissue workplace injuries in California

According to a study by the Workers’ Compensation Insurance Rating Bureau of California, the share of claims with soft-tissue injuries decreased by 12% in industries with lower levels of health coverage with the implementation of the Affordable Care Act from 2013 to 2015.


Safety training falls short for immigrant workers at small construction companies: study

Immigrant construction workers employed by small companies do not receive the same amount of safety and health training as their counterparts at larger companies and encounter a greater language barrier problem, according to a recent study from NIOSH and the American Society of Safety Engineers. The study was published in the March issue of the journal, Safety Science.

20 percent of workers are obese, inactive or sleep-deprived: NIOSH

More than 20 percent of workers are obese, don’t get enough physical activity or are short on sleep, according to a recent study from NIOSH. Using 2013 and 2014 data from the Behavioral Risk Factor Surveillance System, researchers looked at workers from 29 states and 22 occupational groups.

They found that approximately 16 percent to 36 percent of workers had a body mass index of 30 or higher, and 1 in 5 workers said they had not engaged in any leisure-time physical activity in the past month. In addition, about 31 percent to 43 percent of respondents averaged less than seven hours of sleep a night.

Transportation and material moving workers had significantly higher prevalence of all three risk factors when compared to all workers. Three occupational groups had a higher prevalence of shortened sleep time compared with other workers: production, health care support, and health care and technical services.

The study was published in December in the Journal of Occupational and Environmental Medicine.

Proper equipment, training can reduce falls overboard in commercial fishing industry: report

Falls overboard are the second leading cause of death in commercial fishing operations, according to a recent study from NIOSH.

From 2000 to 2016, 204 commercial fishing crew members died after unintentionally falling overboard and records show none of the victims was wearing a personal flotation device at the time of the fall. Other findings help identify preventive steps that would reduce the risk of falls overboard.

State News

California

  • Supreme Court adopted a new legal misclassification test that will make it much more difficult for businesses to classify workers as independent contractors (see Legal Corner – Supreme Court defines Independent Contractors).
  • The Workers Compensation Insurance Rating Bureau is proposing a 7.2% midyear pure premium rate reduction for businesses and the insurance commissioner wants further cuts.

Florida

  • The Florida Office of Insurance Regulation has approved a 1.8% rate decrease for workers compensation insurance related to U.S. corporate tax reform.
  • The Workers’ Compensation Research Institute (WCRI) announced that the total cost per workers’ compensation claim experienced moderate increases from three to five percent between 2011 and 2016.

Indiana

  • The Workers’ Compensation Board has released new guidelines for nurse case managers and will soon unveil new protocols for disputed claim settlement documents.

Michigan

  • The Workers’ Compensation Agency issued a reminder bulletin, noting that Explanation of Benefits (EOB) must go to the provider and worker, not third-party payers and networks.

Minnesota

New York

  • Employers will have to provide an interactive forum to satisfy the new law requiring yearly training to prevent sexual harassment. The law takes effect on October 9.

North Carolina

  • The Industrial Commission has finalized a companion guide to help providers navigate new restrictions on opioid prescribing for injured workers. Nine new rules are now in effect.

Pennsylvania

  • Pennsylvania Governor Tom Wolf vetoed a bill that would have created a formulary in the state for workers’ compensation prescriptions.
  • The frequency and cost share of physician-dispensed drugs decreased considerably following the implementation of legislative reforms, but the cost savings were offset by a rise in pharmacy dispensing of expensive compound drugs, according to a new WCRI study.
  • Philadelphia employers can ask job candidates to disclose their salary histories, but can’t use that information to determine their pay, a federal judge ruled April 30. To play it safe, employers might want to eliminate salary history questions from their hiring processes, experts say.

Tennessee

  • Tennessee’s Bureau of Workers’ Compensation announced new claims-handling standards and rules that will take effect Aug. 2, including a rule that ends the requirement that carriers have a claims office in the state.

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

OSHA watch

Long-awaited proposed rules to clarify crane operator requirements issued

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

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

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

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

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

California

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

Florida

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

Georgia

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

Kansas

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

New York

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

Pennsylvania

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

Tennessee (Tennessee OSHA)

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

Wisconsin

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

For more information.

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

Things you should know

Workplace deaths rise and workplace violence is now the second-leading cause

According to Bureau of Labor Statistics data cited in the AFL-CIO’s 2018 edition of Death on the Job: The Toll of Neglect, 5,190 workers were killed on the job in 2016, an increase from the 4,836 deaths the previous year, while the job fatality rate rose to 3.6 from 3.4 per 100,000 workers. Workplace violence is now the second-leading cause of workplace death, rising to 866 worker deaths from 703, and was responsible for more than 27,000 lost-time injuries, according to data featured in the report.

35% of workers’ compensation bills audited contained billing errors

Out of hundreds of thousands of audited workers’ compensation bills, about 35% contained some type of billing error, according to a quarterly trends report from Mitchell International.

The top cause was inappropriate coding, which produced 24% of the mistakes and unbundling of multiple procedures that should have been covered by one comprehensive code accounted for 19% of billing mistakes.

Only 13 states adequately responding to opioid crisis – National Safety Council

The National Safety Council (NSC) released research that shows just 13 states and Washington, D.C., have programs and actions in place to adequately respond to the opioid crisis going on across the country. The states receiving the highest marks of “improving” from the Council are Arizona, Connecticut, Delaware, Washington, D.C., Georgia, Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, Virginia and West Virginia. Eight states received a “failing” assessment including Arkansas, Iowa, Kansas, Missouri, Montana, North Dakota, Oregon and Wyoming.

NIOSH answers FAQs on respirator user seal checks

Seal checks should be conducted every time respiratory protection is used on the job, and employers and workers should ensure the equipment is worn properly so an adequate seal is achieved, NIOSH states in a recently published list of frequently asked questions.

NIOSH publishes fact sheet on fatigued driving in oil and gas industry

According to a new NIOSH fact sheet, fatigue caused by a combination of long work hours and lengthy commutes contributes to motor vehicle crashes, the leading cause of death in the oil and gas industry.

New tool allows employers to calculate cost of motor vehicle crashes

Motor vehicle crashes cost U.S. employers up to $47.4 billion annually in direct expenses, according to the Network of Employers for Traffic Safety, which has developed a calculator to help organizations determine their own costs.

It has separate calculators for tabulating on- and off-the-job crashes, as well as one for determining return on investment for employee driving safety programs.

Watchdog group releases list of Dirty Dozen employers

The National Council for Occupational Safety and Health (National COSH) announced their list of the most dangerous employers, called “The Dirty Dozen.” Among those listed: Seattle-based Amazon.com Inc., Mooresville, North Carolina-based Lowes Cos. and Glendale, California-based Dine Brands Global Inc., which owns Applebee’s and International House of Pancakes locations.

CMS finalizes policy changes for Medicare Part D Drug Benefits in 2019 with focus on managing opioid abuse

The policy change addresses the Implementation of the Comprehensive Addiction and Recovery Act of 2016 (CARA), which requires CMS’ regulations to establish a framework that allows Part D Medicare prescription plans to implement drug management programs. Part D plans can limit access to coverage for frequently abused drugs, beginning with the 2019 plan year and CMS will designate opioids and benzodiazepines as frequently abused drugs.

Stakeholders hope that CMS will apply similar thinking to Workers’ Compensation Medicare Set-Aside (WCMSA) approvals in which the beneficiary is treating with high-dosage opioids.

Study: workers exposed to loud noise more likely to have high blood pressure and high cholesterol

A study from the Centers for Disease Control (CDC) was published in this month’s American Journal of Industrial Medicine that indicates workers who are exposed to loud noises at work are more likely to have high blood pressure and high cholesterol.

IRS FAQs on tax credit for paid leave under FMLA

The IRS has issued FAQs, which provide guidance on the new tax credit, available under section 45S of the Internal Revenue Code, for paid leave an employee takes pursuant to the FMLA.

US Supreme Court rules car dealership service advisers exempt from being paid overtime under the Fair Labor Standards Act

The FLSA exempts salesmen from its overtime-pay requirement and “A service adviser is obviously a ‘salesman,'” said the majority opinion in the 5-4 decision in Encino Motorcars L.L.C. v. Navarro et al. This reversed a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that held the advisers were not exempt from being paid overtime.

Legal experts note that this expands the FLSA’s interpretation more broadly and could have implications for other businesses.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) quarterly report for year-end 2017 projects an ultimate accident year combined loss and expense ratio of 92%, which is 5 points higher than that for 2016 as premium levels have lowered while average claim severities increased moderately. More findings.
  • Cal/OSHA reminds employers to protect outdoor workers from heat. The most frequent heat-related violation cited during enforcement inspections is failure to have an effective written heat illness prevention plan specific to the worksite. Additional information about heat illness prevention, including details on upcoming training sessions throughout the state are posted on Cal/OSHA’s Heat Illness Prevention page.
  • The Department of Justice certified that the state’s prescription drug monitoring program is ready for statewide use. Doctors will have to start consulting the program before prescribing controlled substances starting Oct. 2.
  • According to a recent report by the Workers’ Compensation Research Institute (WCRI), the state ranked fourth-highest in terms of average claim costs among 18 states examined and a major contributing factor is the relatively high percentage of claims with more than seven days of lost time.

Florida

  • A new law, HB 21, takes effect July 1 and puts a three-day limit on most prescriptions for acute pain and toughens the drug control monitoring program. The bill also provides for additional treatment opportunities, recovery support services, outreach programs and resources to help law enforcement and first responders to stay safe.

Georgia

  • The State Board of Workers’ Compensation’s latest fee schedule update, which became effective April 1, includes the first-ever dental fee schedule and reimbursement rates for air ambulance services as well as other amendments.

Illinois

  • According to a recent report by WCRI, the average claim cost of $16,625 was the highest among 18 states examined and the percentage of claims with more than seven days of lost time ranked third.

Massachusetts

  • Deaths on the job reached an 11-year high in 2017, an increase attributable to the state’s many construction projects, as well as an increased prevalence of opioid addiction, according to a newly released report.

Michigan

  • Work-related injuries requiring hospitalization increased for the third straight year recent data from Michigan State University shows.

Minnesota

  • The Department of Labor plans to adopt what it calls “cost neutral” changes to workers’ compensation vocational rehabilitation fees and other rules without a public hearing, unless one is requested by at least 25 people, in keeping with state law. Comments can be made until May 31.
  • Paid claims and premiums have dropped significantly in the last 20 years (54 percent relative to the number of full-time-equivalent (FTE) employees from 1996 to 2016), while benefits have risen slightly, according to the Minnesota Workers’ Compensation System Report for 2016.

North Carolina

  • The Supreme Court denied review of an appeal by medical providers who argued that the Industrial Commission violated the state’s Administrative Procedure Act when it adopted an ambulatory surgery fee schedule. The fee schedule that became effective on April 1, 2015, remains in effect.

Tennessee

  • According to a recent report by WCRI, the average total cost per workers’ compensation claim decreased by 6% in 2015, driven by a 24% reduction in permanent partial disability and lump-sum benefit payments.

Wisconsin

  • In an effort to combat the misclassification of workers, the state has netted $1.4 million in unpaid unemployment insurance taxes, interest and associated penalties, according to the state Department of Workforce Development.
  • According to a recent report by WCRI, medical costs in workers’ comp increased five percent per year rising in 2014 with experience through 2017.

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