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

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

Legal Corner

ADA
Lawsuit alleging wrongful termination because perceived-as disabled reinstated

In Paula E. Babb v. Maryville Anesthesiologists P.C., a nurse anesthesiologist contends that Tennessee-based Maryville Anesthesiologists P.C., fired her because it thought she was visually disabled. She acknowledges an eye condition that requires her to hold written records close to her eyes, but argues it does not inhibit her ability to read.

The company, however, says she was fired because of two serious errors that put patients at risk. But an email was circulated to staff saying that she was fired because she “has been having major issues with her eyesight and as of late, it has seemed to be getting even worse.”

The Sixth Circuit finds that the email and other evidence present a triable case of regarded-as disability discrimination under the ADA and reinstates the case.

EEOC disability suit settled for $2.65 million

Crossmark, a company that provides workers to dispense free food samples to shoppers, allegedly failed to provide a reasonable accommodation by not allowing its employees to sit for more than 10 minutes every two hours. The Equal Employment Opportunity Commission (EEOC) noted some employees were permitted to sit as needed when they performed the same job while working directly for the retailers.

The firm agreed to pay $2.65 million and designate ADA coordinators to address accommodation requests, among other provisions.

Workers’ Compensation

Tort claim for lead poisoning barred by exclusive remedy – California

In an unpublished opinion, Deville v. Bloch, the company, Exide, was ordered to suspend operations in Vernon because plant operations were causing the discharge of illegal amounts of lead into the air, water, and soil. Before the plant’s closing, a long-term worker at the hazardous waste treatment and storage plant lost consciousness while cleaning one of the facility’s furnaces. More than three years later he sued, alleging unspecified injuries caused by exposure to lead and other hazardous chemicals.

The appellate court upheld the dismissal of the claim, agreeing workers’ comp exclusive remedy applied. The allegations that Exide knew the employees faced a risk of harm from exposure to lead and other chemicals were not enough to invoke the fraudulent concealment exception to workers’ compensation exclusivity.

Workers over 70 have five-year statutory limit on PTD benefits – Florida

In Crispin v. Orlando Rehabilitation Group, the 1st District Court of Appeals ruled that a worker over the age of 70 is statutorily limited to permanent total disability benefits for a calendar period of five years after she is determined to be permanently and totally disabled. According to the court, eligibility for PTD payments ends five years to the day after the worker is determined to be permanently and totally disabled.

Undocumented worker denied medical care for injury – Florida

In Hernandez v. Food Mkt. Corp., an appellate court upheld the ruling that an undocumented worker who sustained injuries in a work-related accident can be denied benefits on the basis that he used someone else’s Social Security Number (SSN) when completing an intake form at a medical provider. By so doing, the court noted the injured worker had offered a false or misleading statement to secure workers’ compensation benefits.

Pre-existing condition does not negate continuation of medical treatment – Florida

In Premier Community Healthcare Group v. Rivera, a divided appeals court ruled that a dental assistant who was injured while preventing a patient from falling, but had a previous medical condition related to a car accident, must continue to receive benefits. The employer and insurer initially accepted compensability of injuries to the low back and neck, but later denied claims for cervical injections and physical therapy when her medical history revealed that she had a prior motor vehicle accident and previous neck symptoms.

The carrier presented two doctors who testified that the workplace injury is not the major contributing cause of the need for medical treatment of the cervical spine. However, in a divided opinion, the court upheld the JCC’s opinion the worker’s doctor was more persuasive.

JCC may not ignore opinion of expert medical advisor – Florida

In Olvera v. Hernandez Constr. of SW Fla. Inc., although an Expert Medical Advisor (EMA) indicated in his report that a worker had not reached MMI because future surgery was required, a Judge of Compensation Claims (JCC) found that the worker had reached MMI. An appellate court found that the JCC’s decision, which was made based on the EMA’s answer to one leading hypothetical question on cross-examination, was in error because the JCC cannot disregard the presumed correctness of an unequivocal EMA.

Civil suit can proceed in workplace parking lot shooting – Georgia

In Smith v. Camarena, the estate of a worker who was killed in a grocery store parking lot after finishing her shift filed a civil suit against her employer. The woman and a co-worker were approached by a masked gunman who demanded their purses. An assistant manager was driving by and called to the gunman and shots were exchanged and the woman was killed. While a trial court denied the suit based on the exclusive remedy of workers comp, the Court of Appeals said it could proceed.

Although it is undisputed that she had left work, the employer argued she was “within the period of her employment under the ingress/egress rule.” Noting the parking lot was owned by the store’s landlord and served several other stores, the appellate courts said there is a question of whether the location was part of the employer’s premises and a jury should decide if the shooting occurred in the course of employment.

TTD denied for failure to follow work restrictions – Georgia

In Burch v. STF Foods Inc., the Court of Appeals ruled that a restaurant worker, who had injured his back and had received written restrictions from the restaurant’s owner, was not entitled to temporary total disability benefits after being fired for failing to abide by the lifting restrictions. Despite the instructions, he continued to lift heavy items, received warnings, and suffered additional injuries to the back/shoulder area.

When he was fired for insubordination, he filed for workers comp and an administrative law judge (ALJ) found in his favor, finding his restrictions were related to his work injury. Upon appeal, the court found the ALJ had erred and that the worker failed to prove any loss of earning capacity was attributable to his compensable work injuries, but rather was due to subordination.

Case to watch: McDonalds’ employees in Chicago sue over workplace violence – Illinois

Seventeen Chicago-area workers filed suit in the Circuit Court of Cook County claiming that the “Experience of the Future” store renovations makes it easier for angry customers to leap over the counter and attack them. The suit claims that in the Chicago area, there are more than 20 calls every day to emergency services from McDonald’s stores and that the company ignores practices that could make the stores safer.

Drainage contractor found guilty of manslaughter in workers’ deaths – Massachusetts

Atlantic Drain Services of Blackstone had been cited by OSHA in 2007, 2012 and again in 2017 after two workers drowned when a trench collapsed. The company was fined $1.47 million in 2017. Three years later, Atlantic Drain owner Kevin Otto and his company were separately found guilty of two counts of manslaughter and one count of witness intimidation in Superior Court.

In addition to failing to use cave-in protection and placing employees in severe danger, it was alleged that the company attempted to mislead the investigation by falsifying documents, including sign-in sheets for excavation and trenching training, as well as workers’ signed acknowledgment of receiving personal safety equipment.

The owner faces up to 20 years in prison and fines up to $250,000.

City agrees to pay workers comp, a wrongful termination claim, and hold open the possibility of a future asbestos-related claim – Michigan

The East Lansing City Council has agreed to pay a former wastewater treatment plant employee $125,000 to settle a workers’ compensation claim and a wrongful termination lawsuit. He alleged he was fired because he reported health and safety violations to state agencies and because he filed a workers’ compensation claim. He also claimed respiratory damage from asbestos and a mercury spill at the facility and the city agreed he could file a claim in the future if he is diagnosed with an asbestos-related illness.

No causal connection between tinnitus and work-related fight – Missouri

In Schlereth v. Aramark Uniform Servs., a state appellate court panel affirmed a Commission decision concluding that a supervisor’s tinnitus was not caused by a work-related brawl that resulted from the supervisor’s crude characterization of a subordinate’s work. Although he did sustain obvious injuries to the face and head, he did not seek benefits until three years later after he received social security benefits.

In spite of surgery complications, worker fails to prove medical causation of sinus cavity clot – Nebraska

In Homstad v. Block 21, LLC, a worker underwent knee surgery for a work-related injury and suffered a deep venous thrombosis (DVT) in his thigh, as well as a pulmonary embolism. Later, he contended that a blood clot in his sinus cavity was causally connected to the earlier injury and surgery. The medical experts were cautious, neither confirming or denying, the causation. Thus, an appellate court upheld the Workers’ Compensation Court decision that the worker had not met the burden of proof.

Workplace fire did not conclusively cause lung disease – Nebraska

In Pennington v. SpartanNash Co., a three-judge panel of the Court of Appeals affirmed a Workers Compensation Court decision that a worker with lung disease failed to show that his illness was brought on by a workplace fire. He worked as a store manager for Michigan-based food distributor SpartanNash and put out a small fire in an unused walk-in freezer. Although he did not seek medical treatment at the time, a few days later he fainted and was referred to a pulmonologist, who diagnosed pneumonitis and ordered him to stop working. His treating physician wrote a letter stating that his pneumonitis and symptoms were “more likely than not” a result of the chemical and smoke exposure, and a second physician opined that his exposure on the day of the fire more likely than not resulted in his lung disease. The company’s medical expert said the cause could not be determined with certainty.

The court found that his medical experts failed to provide sufficient support for their opinions.

Construction company operator, foreperson, and engineer indicted for manslaughter in death of laborer following wall collapse – New York

Owners and managers of WSC Group LLC, a Sunset Park construction company, have been indicted on manslaughter, negligent homicide and workers’ compensation insurance fraud some 14 months after a wall collapsed and killed a welder at an excavation site in Brooklyn.

Worker employee, not independent contractor – North Carolina

In Macias v. BSI Associates Inc., a worker was injured while working for the Carolina Chimney Crew, settled the claim, and agreed not to work for the company in the future. The following year, the owner suggested the former employee start his own company, purchase the necessary insurance, and work as an independent contractor for him. His insurance indicated zero employees and he excluded himself from coverage.

The company furnished vehicles, tools, equipment and supplies, business cards, Carolina Chimney Crew clothing, and provided specific instructions on where he was to work and what work he was to perform each day. He resumed his work in almost identical fashion as when he was an employee and a few years later fell from a scaffold and fractured his spine.

While the claim for workers’ comp was denied by the company’s insurer based on his status as an independent contractor, a three-judge panel of the Court of Appeals unanimously affirmed an Industrial Commission decision holding that the injured man was an employee, not an independent contractor, and, therefore, entitled to workers compensation.

Definition of employer’s premises clarified in parking lot decision – Pennsylvania

In US Airways v. Workers Compensation Appeal Board, a 6 – 0 decision of the Supreme Court’s Western District in Pittsburgh affirmed a workers compensation judge’s finding that a flight attendant was in the course and scope of her work when she was injured. The flight attendant was injured after her shift ended while riding an airport shuttle bus to an employee parking lot. The City of Philadelphia, and not the airline, owned both the shuttle bus and the employee parking lot.

With the decision, the Court stood by its earlier Epler holding that the phrase “the employer’s premises” should be construed liberally to include any area that is integral to the employer’s business operations, including any reasonable means of ingress to or egress from the workplace.

Employee of staffing agency cannot sue borrowing employer – Pennsylvania

In Burrell v. Streamlight, an employee of a staffing agency fell while assigned to Streamlight, received comp benefits from the staffing agency, and filed a negligence suit against Streamlight. Streamlight argued it was acting as his employer at the time and, therefore, was immune from civil liability.

The appellate court stressed that the issue turned upon whether the borrowing employer had the right to control not only the work to be done by the borrowed employee but the manner of performing it. It found the evidence established that Streamlight was his employer.

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

Things you should know

Soap more effective than hand sanitizers in combatting flu

Researchers from the Kyoto Prefectural University of Medicine found that ethanol-based sanitizers can take up to four minutes to disinfect hands that carry the flu virus. The use of soap and water inactivated the virus in the infected mucus within 30 seconds.

The study was published online in mSphere, the journal of the American Society for Microbiology.

CMS Updates WCMSA Reference Guide

CMS has released an updated WCMSA Reference Guide version 3.0. Noteworthy changes are 1) the Amended Review period was extended from 4 to 6 years (Section 16.2), and 2) Effective April 1, 2020, the required language for the signed consent form to submit an MSA to CMS now must include a statement that the WCMSA arrangement need and process has been explained to the claimant and that the claimant approves of the contents of the submission (Section 10.2).

New drug tests in works for measuring medical marijuana impairment

New drug tests that could help employers measure marijuana impairment are expected to hit the market in 2020 and be similar to an alcohol breathalyzer. Researchers from the Swanson School of Engineering at the University of Pittsburgh in Pennsylvania and Hound Labs Inc., based in Oakland, California, are among those working on the testing.

NSC issues policy position on cannabis use while working in a safety sensitive position

The National Safety Council (NSC) released a policy position that it is unsafe to be under the influence of cannabis while working in a safety sensitive position due to the increased risk of injury or death to the operator and others. The NSC defines safety sensitive positions as those that impact the safety of the employee and the safety of others as a result of performing that job.

Opioids cost economy at least $631 billion from 2015 to 2018: Study

study by the Society of Actuaries finds the opioid epidemic cost the U.S. economy at least $631 billion from 2015 to 2018.The costs include healthcare, lost productivity, premature mortality, criminal justice activities, and child and family assistance and education programs. It’s projected that the costs in 2019 will be around $188 billion.

Construction workers most likely to use opioids, cocaine: Study

Construction workers are more likely to use opioids and cocaine than workers in any other profession and were the second most likely to use marijuana (service workers were first), concluded researchers from the Center for Drug Use and HIV/HCV Research at New York University’s College of Global Public Health. The problem creates a vicious cycle: substance abuse may lead to accidents and the associated injuries may lead to higher substance abuse.

Doctors wary of taking opioid patients: Study

Eighty-one percent of primary care physicians surveyed recently said they are reluctant to take on patients who are currently on opioids, according to a new Health Trends™ report from Quest Diagnostics. 72% worry that chronic pain patients will turn to illicit drugs if they do not have access to prescription opioids,

Doctors trust patients, but test results show misuse

The same Health Trends report cited above notes nearly three in four physicians trust their patients to take controlled substances as prescribed, yet half of all patient test results show misuse of these drugs. Non-prescribed gabapentin use is accelerating, growing 40% in the past year, making it the most commonly detected non-prescribed controlled medication in tested patients.

Registration is open for FMCSA drug and alcohol clearinghouse

The Federal Motor Carrier Safety Administration (FMCSA) has opened registration for the long-awaited clearinghouse. The clearinghouse is a secure database that allows FMCSA and others to identify commercial drivers who have violated drug and alcohol testing program requirements in real time. Commercial driver’s license holders, fleets, medical review officers and substance abuse professionals can create an online account.

Two studies address preventing work-related asthma

The National Institute for Occupational Safety and Health (NIOSH) suggests in two studies that work-related asthma can be controlled by controlling exposure to hazardous substances. In the first study, NIOSH investigators focused on the link between cleaning and disinfecting products and various asthma symptoms among healthcare workers. In the second, they looked at the presence of chronic obstructive pulmonary disease (COPD) among people with work-related asthma and those with asthma from other causes.

Sleep deprivation a growing problem: Study

Researchers from Ball State University found that more than 1 out of 3 U.S. working adults aren’t getting enough sleep, and the prevalence of sleep deprivation has increased significantly since 2010. Women have experienced the largest increase. The study notes “Inadequate sleep is associated with mild to severe physical and mental health problems, injury, loss of productivity, and premature mortality.”

The study was published online in the Journal of Community Health.

MSHA reinstates final rule on pre-shift mine examinations

The Mine Safety and Health Administration has reinstated a 2017 rule that requires a competent person to inspect the workplace before a shift rather than when miners begin work, in accordance with an Aug. 23 mandate of the U.S. Court of Appeals for the District of Columbia Circuit. According to a notice in the Federal Register the measure vacates a 2018 amendment to the rule.

State News

California

  • The Governor has signed a bill adding post-traumatic stress disorder suffered on the job as a compensable injury for first responders.
  • Workers compensation inpatient hospital stays dropped by nearly one-third between 2010 and 2018, largely due to a decline in spinal fusions, according to a study by the Workers Compensation Institute (CWCI).
  • Workers’ Compensation Insurance Rating Bureau releases 2019 Policy Year Statistical Report.
  • 94.1% of medical services performed or requested for injured workers were either approved or approved with modifications, according to a CWCI report.

Florida

  • The insurance commissioner refused to accept the NCCI recommended 5.4% rate decrease in 2020 and has proposed a workers’ compensation rate decrease of 7.5% on new and renewal policies.

Massachusetts

  • The Department of Industrial Accidents has posted updates to maximum weekly benefits, cost-of-living adjustments and other payments, including a significant increase in attorneys’ fees.

New York

  • Indemnity, medical and disability claims have remained stable, and more workers are receiving their first indemnity payment within three weeks of an injury, according to a report by the Workers Compensation Research Institute.
  • Large, complex construction sites in New York City must immediately post at their exits multilingual notices about upcoming safety training requirements. Beginning Dec. 1, all workers at these construction sites must have at least 30 hours of site-safety training, while supervisors must have at least 62 hours. A 40-hour training requirement for workers at these sites will go into effect Sept. 1, 2020. More information.

Tennessee

  • The Department of Labor and Workforce Development has proposed rule changes to workers’ compensation appeals procedures, which appear to be extensive, but are intended to make the process easier to navigate. There will be a public hearing on the proposed appeals rules at 1 p.m. Dec. 12 in the Occupational Safety and Health Hearing Room, 220 French Landing Drive, 1-A, in Nashville.

Virginia

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Legal Corner

ADA
Adverse employment action cannot be motivated by associational disability claim

The association provision of the ADA does not require employers to reasonably accommodate nondisabled employees so that they may care for disabled relatives or others. In Kelleher v. Fred A. Cook Inc., 2d Cir., a truck operator had a daughter who was born with Rett Syndrome, a severe neurological disorder. After he informed his company that he may have to rush home occasionally, he was given different job responsibilities with lower pay and his request to work 8-hour shifts, rather than 10-12 was denied. His supervisors told him, “his problems at home were not the company’s problems” and that he would not receive a raise.

After his daughter had a near-fatal seizure he told the company he could not work his next shift and he was demoted. A few weeks later, he was 10 -15 minutes late for work and ultimately was fired. While a district court dismissed his complaint under the ADA, the 2nd Circuit reversed. Although it acknowledged that he was not entitled to a reasonable accommodation as an employee associated with an individual with a disability under the ADA, the Court noted, “an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.”

The company did not have to accept his schedule request, but his termination could not be motivated by his daughter’s disability. The court found sufficient allegations that the employer thought his daughter’s disability was a distraction and terminated him as a result because he was told “his problems at home were not the company’s problems” and was demoted after missing a shift to care for his daughter.

 

 

Woman wins lawsuit against university for not extending leave for postpartum depression

In Alves v. Trustees of Boston University, a woman who suffered from postpartum depression recently won a disability discrimination case against Boston University, her former employer, after her request for a second medical leave was rejected following the birth of her son about three years ago. Her leave was extended once under the FMLA, but her request for a second extension was denied and she was fired.

A jury awarded her $144,000 in compensatory damages for lost wages and emotional distress since the University did not follow the interactive process to reach a reasonable accommodation.

Jury awards Walmart employee $5.2 million

A Walmart cart pusher, who has a developmental disability and is deaf and visually impaired, had worked at a Beloit, Wisconsin, Walmart for 16 years. After a new manager started at the store, the employee was suspended and later forced to resubmit medical paperwork to keep his reasonable accommodations at his job. Walmart indicated safety concerns triggered the request. Before his suspension, the employee had performed his job with accommodation including assistance of a job coach.The paperwork requested the coach’s continued assistance. At that point, the employee was terminated.

Walmart’s position was that the employee could not perform the essential parts of his job with or without reasonable accommodations and that the EEOC demands were unreasonable. The company is weighing its options.

Workers’ Compensation

Safety citation for failure to require appropriate footwear upheld – California

In Home Depot USA Inc. v. California Occupational Safety and Health Appeals Board, the Court of Appeals in Riverside unanimously affirmed an administrative law judge’s safety citation of $12,375 against Home Depot for failing to require its employees to wear appropriate footwear and ensure workers complied with industrial truck operation standards at its Mira Loma distribution warehouse. Two Home Depot warehouse workers had an accident while driving electric pallet jacks and one caught her foot between two jacks, sustaining an injury.

A Cal/OSHA inspection revealed that the employees were not wearing steel-toed footwear or work boots, but most wore sneakers. The investigator cited Home Depot for failing to require employees to wear appropriate foot protection and ensuring employees comply with safe operation standards for industrial trucks.

Home Depot’s policy required only that workers wear “closed-toed and closed-heeled shoes” and specifically did not allow “flip-Flops, sandals, open-toed shoes, or open heeled shoes.” The company argued that steel-toed boots or similar footwear can cause ergonomic problems, tripping hazards, and fatigue, and they can be “cumbersome,” “uncomfortable” and “bulky.”

Amicus curiae, Retail Litigation Center, Inc. and National Federation of Independent Business, who supported Home Depot, objected that the Board’s opinion articulates an “uncertain standard [that] will have far-reaching consequences…” The appeals court noted that a violation of the safety order is not based on previous history of accidents or injuries resulting from the exposure but rather on the existence of the danger which may cause injury. However, the court did “agree the language in the Board’s opinion can be read to sweep too broadly, so we emphasize our holding is limited to the facts and evidence of the case.”

Ruling on enforceability of unsigned document published – California

The 2nd District Court of Appeal’s decision in Travelers Property Casualty Co. of America v. WCAB (CIGA) established that an insurance policy’s limiting endorsement for special employees could not be invalidated just because the employer had not signed it. It originally was released as an unpublished decision, which is not binding precedent.

Unexercised right to subrogation does not bar removal of civil suit to federal court – California

In Gutierrez v. McNeilus Truck & Mfg, a worker was seriously injured when he fell from the roof of a garbage truck and sued the company that designed and manufactured the truck. When the case was removed to federal court on diversity grounds, the company filed a motion to remand because generally a civil action arising under the workers’ compensation laws of a state may not be removed.

However, the court denied the motion because the company contended that the claim arose under the workers’ compensation law because the injured worker’s employer and insurer had the right of subrogation, but neither the employer nor the insurer had asserted a subrogation claim. Therefore, they were not parties to the action. If the employer or insurer had intervened before the removal, there could have been a different outcome.

IME opinion that smoking and not worksite caused respiratory condition nixes claim – Florida

In Ernesto Blanco v. Creative Management Services LLC/Technology Insurance Co., an appeals court upheld the opinion of a judge that the major contributing cause of an employee’s respiratory condition was his 17-year history of cigarette smoking, not his 11 days on the job at an events management firm, handling materials that produced sawdust and debris in the air. On appeal, one of the worker’s challenges was the qualifications of the employer’s independent medical examiner (IME), who was not a pulmonologist. The court disagreed noting the IME was a board-certified occupational medicine specialist with extensive experience in exposure cases leading to pulmonary problems and qualified to give an opinion.

Jury awards over $3 million to injured worker in retaliation case – Illinois

In Jankowski v. Dean Foods, a worker who was injured at Dean Food’s Huntley milk processing facility, collected workers’ compensation, but refused work that exceeded his medical restrictions, was not offered any other light duty positions, and was fired. The jury found that Dean Foods discriminated against Jankowski in violation of the ADA by failing to accommodate his disability for one of the several open positions which he was able to perform and awarded $3,316,443 for lost wages and benefits and emotional distress.

Court erred in approving lump sum PPD award – Illinois

In Annoni v. City of Chicago, an appellate court said the employer could not be ordered to pay the worker a lump sum benefit unless the worker had sought such a lump sum pursuant to special statute, 820 ILCS 305/9. Workers’ compensation benefits are to provide a substitute for an injured worker’s lost wages, and as such, the Legislature has indicated a strong preference for period payments.

Parking lot injury not compensable – Illinois

In Walker Brothers v. IWCC (Ramsey), a restaurant posted a notice in the employee break room stating they could park in the Ace lot, which was near the restaurant. After meeting another employee who had a key to the restaurant, an employee slipped and fell as he walked to work. An arbitrator found that he failed to prove that he was in an accident that arose out of and in the course of his employment, but the Workers’ Compensation Commission reversed, and a circuit court judge affirmed.

On appeal, while the appellate court acknowledged employer “provided” parking lots are exceptions to the rule that injuries are not compensable when an employee slips and falls while traveling to or from work, the restaurant did not own or control the lot, nor did it pay for maintenance, and employees were not required to park there. Thus, the injury was not compensable.

Pre-existing fragile mental state exacerbated by workplace injury leads to permanent total disability – Missouri

An employee who endured “significant psychological trauma as a victim of physical and sexual abuse after her daughter’s rape and murder,” suffered head and neck injuries in an assembly line accident. When she returned to work where the plant was noisy, she suffered headaches and lapses of concentration and was unable to keep up with work demands. She was fired after working light duty for one week.

She filed a disability claim, which her employer eventually settled for $30,000, deeming her partially disabled. Later, a judge and the full state Workers Compensation Commission denied her claim for permanent disability, finding she did not “meet her burden of proving the nature and extent of any alleged preexisting psychological disability by a reasonable degree of certainty.” The appellate court disagreed and found the state fund liable for the woman’s permanent total disability, stating that she “met her burden” under state law “establishing that her preexisting permanent disabilities were serious enough to constitute a hindrance or obstacle to her employment or reemployment,” among other reasons.

Additional compensation denied to worker whose pain was not credible – Nebraska

In Oneyda Jordan v. Tyson Fresh Meats Inc., a chicken processing plant worker who underwent surgery to both hands for a compensable work injury sought additional compensation for her continued pain. An appeals court affirmed the denial by the workers compensation court, noting medical evidence proved she had reached maximum improvement and could work unrestricted. Further, based on testimony from co-workers and surveillance video that contradicted her testimony of extreme pain, the court rejected her argument that her pain supported a loss of earning capacity.

Subchapter S business owner benefits based on wages, not share of profits – Nebraska

In Bortolotti v. Universal Terrazzo & Tile Co., the sole stockholder and the president of a Subchapter S corporation, suffered a compensable injury. The IRS Schedule E showed self-employment wages of $3,950 and “qualified production activities income” of $186,873, and the owner testified that he took a weekly draw of $3,625. The case made its way to the Supreme Court that said wages are compensation for activities as a corporate employee and do not include net profit for an employee of an S corporation. It was the employee’s burden to provide evidence differentiating his wages as a corporate employee from his profits as a corporate shareholder, which he did not do. Based on an annual wage of $3.950, he was entitled to $49 per week in benefits, the minimum income benefit.

Volunteer not entitled to benefits – New York

In Matter of Mauro v. American Red Cross, a volunteer received her full salary from her employer while participating in events for the Red Cross during employment hours. She was hit in the nose by a hand cart while she loaded materials into her cart and filed a workers’ comp claim against the Red Cross. The appellate court affirmed the denial of benefits because there was no employment relationship between the volunteer and the charity.

First appellate decision to deal with medical marijuana and workers’ comp – New York

In Matter of the Claim of James Kluge, v. Town of Tonawanda et al., Workers Compensation Board, a police officer sustained a permanent partial disability and suffered from chronic pain. He was prescribed medical marijuana in 2017, which was denied by the comp insurer. He sought review of the denial of the variance request with a worker’s compensation law judge who overturned the denial. However, the Workers Compensation Board reversed finding that “it could not approve a variance for treatment already rendered.”

On appeal, the Court acknowledged that the Board had properly denied the variance request, but indicated it should have considered the merits of the request for prospective marijuana treatment, since the officer has a chronic pain condition necessitating ongoing treatment. The case was remanded for further proceedings.

Disability cannot be apportioned between traumatic brain injury and pre-existing MS – New York

In Matter of Whitney v. Pregis Corp, a maintenance worker slipped on a patch of ice and suffered injuries to his back, hip, head and brain. He also was diagnosed with Multiple Sclerosis (MS) and filed a motion for compensability, arguing that the MS was either directly induced or exacerbated by the fall. A workers’ compensation law judge found that MS was a pre-existing condition unrelated to the fall and the Board affirmed and apportioned 60 percent of the disability to his non-disabling and undiagnosed multiple sclerosis.

An appellate court overturned, noting there was no evidence the MS had affected his abilities to perform the duties of his employment prior to the accident and that the condition had not even been diagnosed until after the accident. Thus, apportionment, as a matter of law, was inappropriate in the case.

Sole remedy for deceased worker’s family is workers’ comp – North Carolina

In State Farm Mut. Auto. Ins. Co. v. Don’s Trash Co., an appellate court held that the auto liability insurer of a corporation that had temporarily borrowed an employee of a separate, but related corporate entity to drive one of its vehicles, need not defend a wrongful death action filed against the corporation. The “borrowed” employee was driving at the time of the fatal crash; therefore, he was the co-employee of the employee who was killed in the vehicular crash and the sole remedy of the deceased’s estate was under workers’ compensation.

Court rejects constitutional challenge to “Protz-fix” – Pennsylvania

In Pennsylvania AFL-CIO v. Commonwealth, the Commonwealth Court rejected a constitutional challenge to the General Assembly’s revised impairment rating evaluation process, which mandates a physician’s use of the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing April 2009) for determining impairment in workers’ compensation cases. The Pennsylvania AFL-CIO asserted that the new law also contained an impermissible delegation of authority to the AMA.

However, the Court noted the General Assembly can adopt as its own “a particular set of standards which already are in existence at the time of adoption.”

Immigration status irrelevant to comp benefits – Pennsylvania

In Bryn Mawr Landscaping Co. v. WCAB (Cruz-Tenorio), a worker was injured when he was struck in the head by a large branch. A neurologist diagnosed him with post-concussive syndrome and other issues and he received treatment from an orthopedic surgeon. Both submitted disability notes to the company. The claims adjuster acknowledged that he had a valid work visa.

The company issued a notice of temporary compensation payable for medical benefits only and began an investigation. Their neurologist and an orthopedic surgeon found that the issues had been resolved.

The employee filed a workers’ compensation claim, and a penalty petition, asserting that Bryn Mawr had violated the law by failing to issue a notice of compensation payable, had not paid him indemnity benefits, and interfered with his ability to obtain medical treatment. In turn,the company filed a termination petition alleging the employee was fully recovered and a suspension petition requesting a change in status from totally disabled to partially disabled because he could not lawfully work.

The case made its way to the Commonwealth Court that found the injured employee was not an undocumented worker nor was his loss of earning power caused by his immigration status instead of work injuries. Further, a judge had determined that the company’s medical experts lacked credibility and the court was bound by that decision. The injured worker was awarded benefits and attorney fees.

High court reverses trial court dismissal of mold exposure claim – Tennessee

In Williams v. SWS LLC, an employee began experiencing respiratory issues when her company moved to a new building. She missed time from work when she had two surgeries in January and July 2011, which included removing a portion of her lingual tonsil and later received a note from her doctor that said she had “clinical evidence of toxic mold exposure” in September 2011. She quit her job in April 2012.

Later she filed a workers’ compensation complaint alleging she had suffered injuries because of her workplace exposure to mold. The case revolved around whether this was a gradually occurring injury or occupational disease and whether the claim had been timely filed. Under the law, the worker has to provide her employer with notice of claim and a request for a benefit review conference within one year of injury. The company argued that since she had lost time from work for surgery to treat her allegedly compensable injuries, her last day worked before her surgery constitutes the date of injury. But the employee argued that the last day was the day she quit.

The Supreme Court’s Special Workers’ Compensation Appeals Panel revived the claim finding there was a triable question as to whether it ought to be barred by the statute of limitations and whether this was a gradually occurring injury or occupational disease.

24/7 home health care not warranted – Virginia

In Dawson v. County of Henrico, a man who became disabled with a brain injury in a work-related vehicle accident failed to convince the Court of Appeals that he required 24-hour a day, seven days a week home health care provided by his fiancée or at her direction. His treating psychiatrist said he suffered from depression, fatigue, headaches, memory impairment, aggression, difficulty regulating emotions and cognitive difficulties and that he failed to “understand what he needs to do to take care of himself.” He recommended the home health care, but later noted he probably did not need care “every hour.”

An appellate court supported the commission’s conclusion that 24-hour home health care was not medically necessary, and affirmed the denial of the care.

Appellate court overturns Commission and denies care by spouse – Virginia

In Cumberland Hosp. & Ace Am. Ins. Co. v. Ross, a registered nurse sustained severe injuries, including traumatic brain injury and was awarded several benefits, including 24-hour home health care, which was provided through an agency. After a little over a year, the nurse filed a claim with the Commission requesting that the home health care be provided by her spouse. The agency hired the spouse, but fired him after three weeks for not properly providing activity notes.

The Commission found that the medical care was necessary and, therefore, did not apply the four requirements set forth in Warren Trucking Co. v. Chandler for care by a spouse. An appellate court said the issue here was not only if home health care was medically necessary, but rather whether the services provided by the spouse constituted such care; therefore, it was necessary to analyze the four requirements of Chandler. Specifically, did the services performed by this spouse in attending to the needs of the disabled nurse qualify as ‘other necessary medical attention’ within the meaning of Code § 65.2-603.

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

OSHA watch

New video explains inspection process

new video explains the OSHA inspection process.

New fact sheet on taxi driver safety

A new fact sheet focuses on keeping taxi drivers safe.

Input sought on safety training

Public input on how to improve access to online classes through the Outreach Training Program can be given here.

Recent fines and awards

Florida

  • Westwind Contracting Inc. was cited for exposing employees to excavation and confined spaces hazards after a worker drowned when water and mud-filled a catch basin in which the employee was working at a Pembroke Pines worksite. The contractor faces $185,239 in penalties.
  • Two commercial and residential roofing companies, Cruz Enterprises & Construction LLC based in Dover and Intex Builders LLC based in Tampa, were cited for exposing employees to struck-by and fall hazards at a Greenacres worksite. Inspected under the Regional Emphasis Program on Falls in Construction, the companies face a combined $83,348 in penalties.

Georgia

  • Discount retailer Dollar Tree Stores Inc. was cited for exposing employees to safety hazards, at its store on Atlanta Highway in Athens. The company faces $125,026 in proposed penalties for exposing employees to struck-by, trip and fall hazards by failing to keep passageways and walking surfaces in a clean, orderly and sanitary condition and for not maintaining access to portable fire extinguishers.

Illinois

  • AB Specialty Silicones LLC was cited for 12 willful federal safety violations after four employees suffered fatal injuries in an explosion and fire at the company’s Waukegan plant. The company faces $1,591,176 in penalties and was placed in the Severe Violator Enforcement Program. Citations included failure to ensure that electrical equipment and installations in the production area of the plant complied with electrical standards and were approved for hazardous locations. The company also used forklifts powered by liquid propane to transport volatile flammable liquids and operated these forklifts in areas where employees handled and processed volatile flammable liquids and gases, creating the potential for ignition.

Massachusetts

  • A petition to the U.S. Court of Appeals for the First Circuit asks that The Roof Kings LLC and its owner, Craig Galligan, be held in civil contempt for not fulfilling the terms of an order issued by the court in 2018. It also asks that The Roof Kings LLC provide written certification that they have abated the 32 cited violations affirmed in the settlement agreement, and pay overdue penalties of $206,090 plus interest, within 20 days.

Missouri

  • A food flavoring company, Kerry Inc., was cited for failing to provide fall protection to employees working in the company’s facility in Greenville after an employee fatally fell while trying to extinguish a fire at the plant. The company faces $223,525 in penalties for one willful and eight serious safety violations and was placed in the Severe Violator Enforcement Program.

Nebraska

  • Smith Mountain Investments LLC of Anson, Maine was cited for two serious safety and health violations for failing to protect workers from hazards associated with heavy physical activity in extreme heat conditions after a heat-related fatality at a jobsite in Inman. The utility pole inspection company faces $18,564 in penalties.

New York

  • The Dollar Tree Stores Inc. was cited for unsafe storage of material, obstructed exit routes and blocked electrical panels at the discount retailer’s Elmira location. The company has been cited several times at other locations and the citations, totaling $208,368, include three repeat violations.
  • Citations against Countryside Tree Service arising from a fatality where an employee was pulled into a wood chipper on his first day on the job at a Schenectady worksite were affirmed by an administrative law judge. Penalties are $66,986.

For additional information.

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

OSHA watch

Proposed revisions to Beryllium Standards for Construction and Shipyards finalized

The June 27, 2017 proposal to revise the construction and shipyards standards was finalized on September 30. A news release notes the rule:

  • Does not implement the proposal to revoke all of the standards’ ancillary provisions, but
  • Extends the compliance dates for the ancillary provisions to September 30, 2020 to account for the new proposal to revise or remove specific provisions; and
  • Maintains enforcement of the permissible exposure limit

Final rule issued for new respirator fit testing protocols

final rule which becomes effective September 26, 2019 adds two fit testing protocols to the agency’s respiratory protection standard (1910.134) was published in the Federal Register on September 26.

The additions are:

  • The modified ambient aerosol condensation nuclei counter quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators
  • The modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators

These new methods are in addition to the standard’s four existing protocols and are variations of OSHA’s original ambient aerosol CNC protocol, but have fewer test exercises, shorter exercise duration, and a more streamlined sampling sequence.

New secretary of labor

Eugene Scalia is the new secretary of labor, after the Senate confirmed him Sept. 26 in a 53-44 vote. Scalia, a corporate lawyer and the son of late Supreme Court Justice Antonin Scalia, replaces acting Secretary of Labor Patrick Pizzella who has been in charge of the department since R. Alexander Acosta resigned on July 19.

New weighting system for inspections

Under the current enforcement weighting system, certain inspections are weighted based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. The Weighting System (OWS) for fiscal year (FY) 2020 adds enforcement initiatives such as the Site-Specific Targeting to the weighting system and other factors, including agency priorities and the impact of inspections. It will incorporate the three major work elements performed by the field: enforcement activity, essential enforcement support functions (e.g., severe injury reporting and complaint resolution), and compliance assistance efforts.

For more information.

Tribal business not subject to OSH Act

In Secretary of Labor v. Red Lake Nation Fisheries Inc., an administrative judge dismissed citations levied against a fishery after two of its workers drowned, finding that the 8th U.S. Circuit Court of Appeals in St. Paul, Minnesota, had previously held that the U.S. Secretary of Labor does not have the authority to enter tribal lands to inspect a workplace. Red Lake Nation Fisheries Inc., based in Redby, Minnesota, is owned and operated by federally recognized Indian tribe the Red Lake Band of Chippewa Indians.

New alert: working safely near overhead powerlines

The latest alert offers solutions for working safely near overhead power lines.

Oil and gas training tool

The updated Oil and Gas Well Drilling and Servicing eTool includes solutions to common well site incidents, hot work, and hydrogen sulfide hazards.

Joint guidance on GHS pictogram requirements

In concert with Health Canada, joint guidance on pictogram requirements for three hazard communication categories has been released. The categories are Hazards Not Otherwise Classified, Physical Hazards Not Otherwise Classified, and Health Hazards Not Otherwise Classified.

Cal OSHA overhauls reporting requirements for serious injuries

Changes to the definition of “serious injury or illness” bring California injury reporting requirements more in line with the federal hospitalization and amputation rule. The new rule:

  • Eliminates the old 24-hour minimum time for a stay at the hospital for an inpatient hospitalization to become reportable;
  • Specifies an inpatient hospitalization must be required for something “other than medical observation or diagnostic testing”
  • Replaces “loss of a member” with the term “amputation”
  • Includes loss of an eye as a specific type of reportable injury
  • Deletes the exclusion for serious injuries or deaths caused by a violation of the Penal Code
  • Narrows the exclusion for injuries caused by auto accidents on a public street; accidents that occur in a construction zone are now reportable

Recent fines and awards

Florida

  • Twins Twins LLC, a tortilla company, was cited for exposing employees to amputations at the company’s facility in Labelle. The company faces $81,682 in penalties. Conducted under the National Emphasis Program on Amputations and Regional Emphasis Program for Powered Industrial Trucks, the inspection found several violations related to lockout tagout, machine guarding, and failure to report a partial finger amputation within 24 hours of the employee’s hospitalization. The company was placed in the Severe Violator Enforcement Program.
  • Hough Roofing Inc., based in Palm Bay, was cited for exposing employees to fall hazards after a worker suffered a fatal injury from a fall while performing roofing activities at a work site in Melbourne. The roofing contractor faces $26,142 in penalties
  • UPS Inc. was cited for failing to protect employees working in excessive heat after an employee suffered heat-related injuries near the Riviera Beach facility. The company faces $13,260 in penalties, the maximum penalty allowed by law for a serious violation.

Georgia

  • Hyundai Transys Georgia Powertrain Inc., operating as Powertech America Inc., was cited for exposing employees to struck-by and fall hazards after a fatality at the company’s West Point facility. The automobile transmission manufacturer faces $68,194 in penalties.

Illinois

  • Polo Masonry Builders Inc., based in Park Ridge, was cited for exposing employees to fall and scaffolding hazards while working on a commercial building project in Chicago and faces penalties of $252,136. The company, which has been cited for fall protection violations 13 times since 2010, was placed in the Severe Violator Enforcement Program.

Michigan

  • A settlement was reached with Kamphuis Pipeline Company, based in Grand Rapids, to resolve trenching hazard-related citations. The company agreed to cease business operations and pay penalties of $509,071 for willful and serious violations. Company owner and founder Daniel J. Kamphuis agreed to surrender his North Dakota contractor license and both he and the company also agreed not to have any ownership or managerial interest in any construction business conducting trenching and excavation activities within the United States in the future.

New York

  • Rex Harper, doing business as REH Property Maintenance, was cited for improper asbestos removal and disposal at Superior Steel Door & Trim Co. Inc. in Jamestown. Harper faces $168,772 in proposed penalties.

North Carolina

  • Oldcastle APG South Inc., based in Greensboro, and operating as Coastal, was cited for exposing employees to amputation, struck-by and silica hazards at the company’s facility in Riviera Beach, Florida. Oldcastle APG South Inc. faces $132,037 in penalties.

Wisconsin

  • Koller Industries operating as Aurora Castings Services was cited for continually exposing employees to machine hazards at the facility in Niagara. The company is contesting the citations that total $ 206,291 in penalties.
  • Wood Sewer & Excavation Inc. was cited for willfully exposing employees to excavation hazards at a construction site in Fox Point. The company faces $65,921 in penalties.

For additional information.

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

Seven ways to improve Workplace Health Promotion Programs for all-sized employers

While workplace wellness programs began as a niche industry, they eventually morphed into comprehensive programs for worksites of all sizes. They’re touted as an effective business strategy to improve the health and productivity of workers, reduce health care costs, attract new employees, and retain existing ones.

Studies of wellness programs have produced conflicting results. Some find that the programs are a good investment with a 3 -1 return, while others have found they may change certain behaviors, but don’t improve job performance. Although the result vary, there’s a common thread – utilization did not live up to expectations.

A recent study, “Availability of and Participation in Workplace Health Promotion Programs (WHPP) by Sociodemographic, Occupation, and Work Organization Characteristics in US Workers” by The National Institute for Occupational Safety and Health (NIOSH) found that just under half of employees have access to them and among those who do have access, just about half utilize them. The study found that although approximately 47 percent of workers have access to WHPPs, only 58 percent of those with access actually participate. That’s roughly one in every four workers.

Occupations such as farming, fishing, forestry, food preparation and serving, construction, and extraction had the lowest availability of WHPP’s and workers in these occupations were also the least likely to participate in the programs. Workers who worked less than 20 hours a week, worked regular night shifts, were paid by the hour, or worked for temporary agencies were also less likely to participate. Researchers also identified barriers that keep workers from participating, including time constraints, lack of awareness, low supervisory support, and perceived need, but noted such barriers vary by industry.

The report concludes that employers should gauge workers’ priorities before designing and implementing WHPPs to customize programs to their employees’ specific needs and maximize participation. Another recent survey by Future Workplace and View sought to identify which wellness perks were most important to workers and how these perks impact productivity.

The results were surprising. It was not fitness facilities or technology-based health tools that topped the list, but air quality and natural light. Air quality and light were the biggest influencers of employee performance, happiness and wellbeing. Only 1 in 4 of the 1,600 employees surveyed say the air quality in their office is optimal for them to do their best work and nearly one-half say the quality of air makes them sleepy. In the number three spot was water quality, followed by comfortable temperatures, then acoustics and noise levels.

Just as people want to have a personalized consumer experience, employees want to be able to customize their work environment – control the temperature, mask noise, have natural light and so on. It’s not as impossible as it sounds. Cisco, for example, has managed the acoustic levels in their space by creating a floor plan without assigned seating that includes neighborhoods of workspaces designed specifically for employees collaborating in person, remotely, or those who choose to work alone. Similar arrangements can be made for temperature and light.

Here are seven steps employers can take to improve their results:

  1. Make WHPPs employee-centric. Complement the workplace health assessment with a survey of your employees to determine their workplace wellness priorities and tailor or modify the program accordingly.
  2. Integrate WHPPs with workplace safety programs. The synergistic possibilities of integrating common safety issues such as work schedules, workplace culture, ergonomics, substance exposures, noise levels, fatigue, and so on with the wellness program are significant.
  3. Personalize as much as possible. Employees expect the ability to personalize their workspace. More workers expect the company that employs them to take their well-being into account in all aspects of work.
  4. Recognize that workplace wellness is more than physical health. Studies show that most worksite health programs focus on physical activity, nutrition, and stress management. Environmental factors such as air, light, temperature, and acoustics are overlooked.
  5. Recognize the challenge of changing human behavior. Personal behaviors, including health and safety, are very difficult to change. They are embedded in routines and habits. It’s going to take time, effort, and reinforcement and there will be setbacks. Employees who are cynical and are distrustful of their employer will not be committed.
  6. Give employees a sense of ownership. Much like a culture of safety, employees must buy into a culture of wellness. Consider a wellness committee from a cross-section of departments and employees to provide input and drive participation.
  7. Monitor employee satisfaction. While employers often struggle with measuring the ROI of WHPPs, common factors include health care costs, absenteeism, disability claims, and workers’ comp claims. It’s important to incorporate “soft” measures such as satisfaction and morale.

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

OSHA’s Top 10 violations: three action steps for employers

For the ninth consecutive year, Fall Protection – General Requirements is the most frequently cited standard, OSHA announced at the 2019 National Safety Council Congress & Expo. The rest of the preliminary list of the Top 10 violations for fiscal year 2019 also remained largely unchanged from FY 2018, with one minor change. Lockout/Tagout, which ranked fifth in FY 2018, advanced to No. 4, trading places with Respiratory Protection.The data, which covers violations cited from October 1, 2018 through August 31, 2019, is preliminary, and therefore, the numbers may change. However, the ranking is likely to remain consistent when the final numbers are released later this year.

Here are the top 10 violations:

  1. Fall Protection (construction) – General Requirements (1926.501) – 6,010 violationsCommon violations included failure to provide fall protection near unprotected sides or edges and on both low-slope and steep roofs. Roofing, framing, masonry and new single-family housing construction contractors were among the most frequently cited. Although the fall protection standard was updated in 2016, some experts suggest it will take several years for employers to get the necessary facility updates into their budgetary cycle.
  2. Hazard Communication (1910.1200) – 3,671 violationsConsidered low-hanging fruit for inspectors, hazard communication has been #2 for several years. Lack of a written program, inadequate training, and failure to properly develop or maintain safety data sheets (SDSs) are common citations. Auto repair facilities and painting contractors were among the industries that received many hazard communication citations.
  3. Scaffolding (construction) – General Requirements (1926.451) – 2, 813 violationsMasonry, siding, and framing contractors are the most commonly cited employers for this violation. Lack of proper decking, failure to provide guardrails where required, and failure to ensure that scaffolds are adequately supported on a solid foundation are common violations.
  4. Lockout/Tagout (1910.147) – 2, 606 violationsEmployers cited under this standard failed to establish an energy control procedure, did not train employees in proper lockout/tagout procedures, failed to conduct periodic evaluations of procedures, and failed to use lockout/tagout devices or equipment. Plastics manufacturers, machine shops, and sawmills were frequently cited.
  5. Respiratory protection (29 CFR 1910.134) – 2,450 violationsCitations related to failure to fit test, establish a program, and medically evaluate employees who wore respirators were common violations issued. Auto body refinishing, painting contractors, masonry contractors, and wall covering contractors received many citations.
  6. Ladders (construction) (1926.1053) – 2,345 violationsLadders continued to be a common violation in the roofing, siding, framing and painting trades. Frequent violations include, ladders with structural defects, failure to have siderails extend three feet beyond a landing surface, using ladders for unintended purposes, using the top rung of a step ladder, and ladders with structural defects.
  7. Powered Industrial Trucks (1910.178) – 2,093 violationsForklift violations dominated this standard, including deficient or damaged forklifts that were not removed from service, failure to safely operate a forklift, operators who had not been trained or certified to operate a forklift, and failure to recertify forklift drivers and evaluate every three years. Violations were widespread across many industries, but particularly prominent in warehousing and storage facilities and fabricated and structural metal manufacturing.
  8. Fall Protection (construction) – Training Requirements (1926.503) – 1,773 violationsViolations of this standard include failing to provide training to each person required to receive it, failure to certify training in writing, inadequacies in training leading to the failure of retention by the trainee, and failing to retrain in instances where the trainee failed to retain the training content.
  9. Machine Guarding (1910.212) – 1,743 violationsWhile cited in many industries, machine shops and fabricated metal manufacturing saw many citations for failing to ensure that guards are securely attached to machinery, improper guarding of fan blades, and failure to properly anchor fixed machinery.
  10. Personal protective and lifesaving equipment (construction) – eye and face protection (29 CFR 1926.102) – 1,411Appearing on the list for the first time in FY 2018, this standard includes failing to provide eye and face protection where employees are exposed to hazards from flying objects, failing to provide protection from caustic hazards, gases, and vapors, and failing to provide eye protection with side protection. Violations were concentrated in the housing industry, with roofers, house framers and other contractors cited often.

Three action steps for employers

With little variation from year-to-year, this list is a reminder to employers that the same violations are putting employees at risk and costing employers thousands of dollars in citations. Here are three steps to take:

  1. Drill down to your industryEmployers can drill down even further and look at the most frequently cited Federal or State OSHA standards by industry for a specified 6-digit North American Industry Classification System (NAICS) code. If your facility is inspected, there’s a very good chance it will include these issues.
  2. Be strategicA common approach is to conduct walk throughs, which can be helpful to identify new or previously missed hazards and failures in hazard controls. However, this is reactionary, not strategic. OSHA states, “an effective occupational safety and health program will include the following four main elements: management commitment and employee involvement, worksite analysis, hazard prevention and control, and safety and health training.” Having a risk management approach is the best possible defense.
  3. Continually reinforce training and commitment to safetyLearning does not start and stop with training. Safe practices have to be practiced and applied to be lasting. While most workers know not to stand on the top rung of a step ladder, it happens because they are in a hurry, careless, or not paying attention. Signage, toolbox talks, digital reminders all help; but most important is effective leadership and employee engagement. When managers enforce the safety rules and stand behind them 100%, workers understand it’s important to their health and well-being and are empowered to take ownership of their own and other’s safety.Further, employee complaints triggered 41% of the unprogrammed inspections and over 23% of all inspections. Employees who feel safe at work and believe the employer cares about their safety, are less likely to file a complaint.

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

Things you should know

Studies and reports:

The Relationship of the Amount of Physical Therapy to Time Lost From Work and Costs in the Workers’ Compensation System – Journal of Occupational Medicine

Finding: Injured workers who take time off work to recover, and whose treatment includes more than 15 sessions of physical therapy, are out of the workforce longer and are six times more likely to cost more.

Suicide and drug-related mortality following occupational injury – American Journal of Industrial Medicine

Finding: Workplace injury significantly raises a person’s risk of suicide or overdose death.

Fatal occupational injuries to independent workers – BLS

Finding: Fatalities among independent workers accounted for about 12% of all workplace deaths in 2016-2017, and independent workers have a disproportionately higher share of fatalities due to falls, slips and trips.

Interstate Variations in Dispensing of Opioids, 5th Edition – Workers Compensation Research Institute (WCRI)

Finding: In 27 states, fewer injured workers received opioids recently as compared with previous years. But, injured workers continue to be treated for pain, as non-opioid pain medications (e.g., NSAIDs) increased to a lesser degree and non-pharmacologic treatments (e.g., physical therapy) without pain medication were more frequently provided.

The effects of sleep on workplace cognitive failure and safety (Construction) – Oregon Healthy Workforce Center

Finding: Among construction workers, there is a connection between poor quality sleep and the risk of workplace incidents and injuries.

Calories Purchased by Hospital Employees After Implementation of a Cafeteria Traffic Light-Labeling and Choice Architecture Program – Massachusetts General Hospital

Finding: Implementation of a traffic light-labeling and choice architecture program was associated with a 6.2% decrease in calories per transaction over 2 years, including a 23.0% decrease in calories from the least healthy food.

Drug trends: Evaluating Opioids – Coventry

Finding: The prescribing of drugs meant to treat opioid use disorder increased 5.4% in 2018 among workers compensation claims and 1.8% of claims with high doses of opioids received naloxone – an anti-overdose medication – at almost double the amount from 2017.

2019 RIMS Benchmark Survey – Business Insurance

Finding: The average total cost of risk for businesses rose by 2.1% in 2018, reversing four years of declines.

Workplace Secondhand Tobacco Smoke Exposure Among U.S. Nonsmoking Workers, 2015 – CDC

Finding: Nearly 1 out of 5 workers are exposed to secondhand smoke on the job. Results identify industries most at risk.

Commercial motor vehicle brake inspection event set for Sept. 15 – 21

Commercial motor vehicle inspectors throughout North America will perform brake system examinations Sept. 15-21 during the Commercial Vehicle Safety Alliance’s annual Brake Safety Week. While special emphasis will be placed on brake hoses and tubing, inspectors also will be looking for other critical non-brake-related violations.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) proposed that the Jan. 1, 2020 rates be about 5.4% lower than the current advisory pure premium rates, or $1.58 per $100 of payroll.
  • WCRIB’s X-Mod estimator is now available for 2020 at https://www.wcirb.com/estimator.

Florida

  • National Council on Compensation Insurance (NCCI) filed a proposed 5.4% rate decrease with the Florida Office of Insurance Regulation, effective January 1, 2020.

Minnesota

  • The Department of Labor and Industry has adopted an expedited rulemaking process, and has published new rules governing treatment and compensation for post-traumatic stress disorder in first responders.

Missouri

  • Department of Labor and Industrial Relations has adopted several new rule changes regarding administrative law judges, review applications and more.

Nebraska

  • Hospitals, insurers, self-insured employers, risk-management pools and third-party administrators can now make reports electronically. FAQ’s are on the website.

Virginia

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