Things you should know

CDC: Half of workplaces offer health/wellness programs

Almost half of all U.S. worksites offered some type of health promotion or wellness program in 2017, according to a new study, Workplace Health in America 2017. This was the first government survey of workplace health promotion programs in 13 years.

Nationally, almost 30 percent of worksites offered some type of program to address physical activity, fitness, or sedentary behavior. Some 19 percent of worksites offered a program to help employees stop using tobacco products, and about 17 percent of worksites offered a program to address obesity or weight management.

FMCSA delays publication of proposed rule to amend trucker hours-of-service regs

The Federal Motor Carrier Safety Administration (FMCSA) has delayed until further notice the publication of a proposed rule intended to add flexibility to hours-of-service regulations for commercial truck drivers. The proposed rule remains under the Office of Management and Budget review.

NLRB gives employers greater discretion to limit union activity on their premises

The National Labor Relations Board (NLRB) recently issued a decision in UPMC Presbyterian Shadyside that reverses a longstanding precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.

Study: Energy drinks take toll on heart health

Popular caffeine-packed beverages could affect heart rhythm, according to a new study. Research findings of a recent study published in the Journal of the American Heart Association (AHA) confirm the short-term risk consumers take when consuming energy drinks. Drinking 32 oz. of an energy drink in a 60-minute timeframe directly affected the heart rhythm of the study’s participants, a result bolstered by previous research.


State News

California

  • The Workers’ Compensation Appeals Board is planning to reorganize its Rules of Practice and Procedure, and is seeking comments from system users about other changes that it should consider. Comments can be sent to WCABRules@dir.ca.gov.

Georgia

  • A new law, the Georgia Long-Term Care Background Check Program will take effect Oct. 1, requiring nursing home and other long-term care workers to submit to extensive background checks.

Illinois

  • Illinois became the 11th state to legalize recreational marijuana.

Massachusetts

  • More changes to three key deadlines for the Paid Family Medical Leave (PFML) law.
    • September 30, 2019 – Employers and covered business entities are required to post a notice and provide written notice to their current workforce.
    • October 1, 2019 – Payroll withholdings begin for the October 1 to December 31 quarter.
    • December 20, 2019 – Deadline to file for a private plan exemption for first quarter contributions.
    • January 31, 2020 – First quarterly contribution payment due through MassTaxConnect.

Michigan

  • The governor issued an executive order creating a separate workers’ compensation appeals commission. The action separates the Unemployment Insurance Appeals Commission from the Workers’ Disability Compensation Appeals Commission.

Minnesota

  • Enacted detailed new recordkeeping requirements for employers, effective July 1, 2019, and wage theft protections for employees, effective August 1, 2019. For more information.
  • Department of Labor and Industry is urging all employers to examine their safety programs, after a spike in reported amputations this year.

Missouri

  • Department of Labor is offering confidential safety and health consultations aimed at helping employers build safer workplaces. Businesses must have no more than 250 employees at any one site, and fewer than 500 total employees, to qualify.

New York

  • The Workers’ Compensation Board formally adopted its drug formulary and prescribing rules for injured workers, set to go into effect Jan. 5, 2020.

Tennessee

  • Rejecting the strict “ABC” test adopted by its appellate court, that state has enacted a new law (H.B. 539) adopting a 20-factor test to determine employee-versus-independent contractor status. The new law becomes effective January 1, 2020.
  • An NCCI study found that prescription drug utilization decreased across all categories, regardless of whether they required prior authorization. After the Official Disability Guidelines Workers’ Compensation Drug Formulary was adopted, the utilization of N-drugs, which require prior authorization, dropped by 23.2%.

Virginia

  • On July 1, 2019, a new amendment to Virginia Code Section 8.01-413.1 will take effect, requiring all employers to provide copies of employment records to employees upon written request.


For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit 
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Legal Corner

Workers’ Compensation 
Determining catastrophic injury under Labor Law – California

Enacted six years ago, Labor Code 4600 was designed to limit additional impairment (referred to as “add-ons”) for psychiatric injuries to cases involving a “catastrophic injury.” Yet, catastrophic injury was not defined. Clarification is provided in a recent case, Wilson v. State of California Department of Forestry and Fire Protection.

Ultimately, it is a factual issue for a judge to determine if the nature of the injury is catastrophic. The court gave specific examples such as the loss of a limb, paralysis, a severe burn or a severe head injury, but noted this was not an exhaustive list. It provided a list of factors that should be considered in making the final determination, including the extent of the treatment needed for the injury, ultimate outcome when the employee’s physical injury is permanent and stationary, severity and impact on daily living, and if the physical injury is an incurable and progressive disease. However, other factors may apply and each case will be determined based on the facts.

Tesla settles personal injury lawsuit with janitor for $13M – California

In the case, Teodora Tapia v. Tesla Motors, a janitor at Tesla’s Fremont assembly plan suffered serious and permanent injuries to her lower extremities and body when she was struck and pinned by a vehicle being moved by a temporary worker, who was not certified to drive the Tesla. While the staffing agency, West Valley will pay much of the $13M settlement, Telsa was a joint employee and will pay a portion.

Failure to provide notice of selection of IME nixes benefits – Florida

In Izaguirre v. Beach Walk Resort, a compensation claims judge denied benefits after striking the report of the injured worker’s independent medical examiner (IME). While the worker admitted she had not provided timely notice of the selection of an IME, she argued that the exclusion of the evidence is discretionary. But the 1st District Court of Appeal noted the statute says the failure to timely provide notification shall preclude the requesting party from submitting the IME findings before a JC. The word ‘shall’ connotates mandatory.

Employee cannot sue employer for failure to provide access to medical care – Georgia

In Savannah Hospitality Servs. v. Ma-010 Scriven, an appellate court ruled an employee’s negligence claim against his employer for allegedly denying him access to medical care and insurance coverage following an injury in a vehicular crash is barred by the exclusive remedy provisions. While it was disputed whether the employee was acting in the scope of the employment at the time he was injured, the court said the relevant issue was the aggravation of those injuries by the employer’s alleged negligence in failing to provide access to medical insurance coverage and precluding the employee from seeking a professional medical opinion.

In Georgia, case law supports the argument that if employment aggravates a pre-existing injury, it is a new accident and compensable. Thus, triggering the exclusive remedy defense.

61-page decision details the difference between an employment-related risk and a neutral risk – Illinois

In McAllister v. IWCC (North Pond), a sous chef knelt down in a walk-in cooler while looking for carrots and felt his knee pop when he stood, which required surgery. An arbitrator found the claim compensable, but the Commission found it was not an employment-related risk and denied benefits.

Upon appeal, a majority of the appellate court said that an employment-related risk is one that is distinctly associated with employment. It can fall into one of three categories – employee performing acts as directed by employer; acts the employee has a common law or statutory duty to perform; and acts incidental to duties that an employee might be reasonably expected to perform.

If a worker is injured in an employment-related risk, it is unnecessary to determine if the exposure to risk of injury is greater than the general public. However, if the risk is not employment-related, but is a neutral risk, an analysis should be done to determine if the risk is greater than that of the general public.

Notice of intent to appeal must be filed within 20 days – Illinois

In Conway v. IWCC, an injured school employee received notice of the Commission’s decision on Oct. 27, 2017, but did not file the notice of intent to petition for review until December 2017. The appellate court noted the statute requires a notice of intent to file a petition for review be filed with the Commission within 20 days of receipt of the commission’s decision, which would have been November 16, 2017.

Medical expert need not be a physician – Missouri

In Hogenmiller v. Mississippi Lime Co., an appellate court upheld an award of permanent partial disability benefits for tinnitus to a long-time factory worker based on the expert opinion of an audiologist, instead of the expert opinion offered by a medical doctor who specialized in otolaryngology. While the company argued that the audiologist based his opinion upon the subjective descriptions offered by the worker, the court noted there is no objective standard for diagnosing tinnitus, but awards have been issued on tinnitus claims based on subjective evidence.

Worker cannot back out of settlement even though there was no written agreement – New York

In Lenge v. Eklecco Newco, a construction worker filed suit against the general contractor and others alleging Labor Law § 241(b) violations and common law negligence. On the first day of the trial, his lawyer stated that the parties had agreed to a settlement of $325,000.

Later, after determining a workers’ compensation lien and a Medicare Set-Aside provision significantly reduced the recovery, the worker’s lawyer declared the settlement “null and void” because there was no written agreement. While a trial court agreed, the appellate court indicated that the stipulation by and among the parties formed an independent contract that would be enforced absent a showing of fraud, duress, overreaching, or unconscionability.

Going and coming rule nixes benefits for transit worker assaulted by passenger – New York

In Matter of Warner v New York City Tr. Auth, a transit worker was assaulted by a passenger as he disembarked from a subway, traveling to his home after the end of a work shift. He wore his official jacket, safetyvest, and hat that identified him clearly as a subway employee, but had clocked out about five minutes earlier. Since he had clocked out and was using the subway the same as any private citizen, the claim was barred by the going and coming rule.

$33M jury award in asbestos death case – North Carolina

In Finch v. Covil Corp., a district court upheld a nearly $33 million jury award granted to the widow of a long-time employee of a tire factory in Wilson who died from mesothelioma caused by asbestos exposure. She sued Covil Corp., a pipe insulation company, which had sold virtually all of the insulation, including the pipe insulation, used during the construction of the tire plant. While Covil argued there was insufficient evidence to support the verdict on liability and that the jury’s verdict was excessive, the court disagreed.

Denied workers’ comp, worker can proceed with medical negligence claim – North Carolina

In Jackson v. Timken Co., a worker filed a suit for medical negligence against his employer and the company nurse, asserting he had been incorrectly diagnosed and treated after a stroke at work. Previously, he had filed a workers’ comp claim but was denied because he did not sustain an injury by an accident arising out of and in the course of his employment.

A judge denied the company’s move to dismiss and the Court of Appeals explained that the Workers’ Compensation Act “does not cover injuries that occur at one’s place of work that are not the result of an accident arising out of and in the course of that person’s employment.” The nurse’s alleged failure to provide a proper diagnose could not be described as an “accident.” Thus, the case can proceed.

Imprisoned worker must continue to receive comp benefits – Pennsylvania

In Carl Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola), a divided Commonwealth Court ordered Philadelphia Coca-Cola Bottling Co. Inc. to recalculate and reinstate workers’ compensation benefits for a worker who was in prison following his injury. The worker was incarcerated a year after his injury for 525 days until his release at trial where he pleaded guilty and was sentenced to time served.

The worker argued his benefits were miscalculated because the figure did not include frequent overtime and state law provides that pretrial incarceration – incarceration because he could not afford bail – does not meet the “incarceration after conviction” stipulation allowing comp benefits to be withheld. While a judge and the Workers’ Compensation Appeal Board ruled in favor of Coca-Cola, the Commonwealth Court found merit in the worker’s argument. The case turned on the word “after” – the worker had not been incarcerated after the conviction.

Case to watch: Supreme Court to rule on retroactive application of Protz decision – Pennsylvania

The Pennsylvania Supreme Court is set to determine the extent to which workers who were still litigating their impairment rating evaluations when the justices issued their landmark workers’ compensation decision in ‘Protz’ are entitled to the benefit of that ruling. Last October in Dana Holding v. Workers’ Compensation Appeal Board (Smuck), the Commonwealth Court en banc ruled that the Protz II decision applied to cases in which IREs were still being litigated at the time of the decision and was retroactive to the date of the IRE, rather than the date of the Protz II ruling.

The court will rule on whether the Commonwealth Court erred in applying the rule from Protz retroactive to the date of the IRE instead of the date of the Protz decision and determine whether an employer is entitled to a credit for the period between the date of a worker’s impairment rating evaluation and the date of its decision in Protz.

Amazon worker’s injuries not job-related – Tennessee

In Ameenah House v. Amazon.com Inc., a worker at an Amazon.com Inc. warehouse in Charleston alleged she was injured in three incidents – a back injury, a forklift accident, and an assault by a coworker. The trial court and the state Workers’ Compensation Appeals Board denied her claim, stating that she did not provide adequate medical evidence that her injuries were related to her job.

Fear of hypodermic needles does not warrant change in physicians – Virginia

In Yahner v. Fire-X Corp., a worker had a normal MRI and a functional capacity evaluation expert opined that she had not sufficiently exerted herself during the exam and likely was exaggerating her symptoms. Her treating physician indicated the best type of continuing care would be injection treatments and she refused on the grounds that she didn’t “like needles.” The Court of Appeals affirmed a decision by the Workers’ Compensation Commission that denied her petition to change her treating physician; the doctor’s actions did not amount to a discharge.

“Sudden mechanical or structural change” requirement for compensation clarified – Virginia

In Alexandria City Pub. Schs. v. Handel, a teacher slipped and fell in her classroom and asserted she had suffered injuries to her right ankle, knee, hip, shoulder, neck, head, and back. Imaging results did not show damage to the shoulder and the employer contested that part of the claim. When the Commission approved benefits for the shoulder, the employer appealed, arguing that there was no structural or mechanical change to the shoulder.

The requirement ‘to show sudden mechanical or structural change’ has been used in courts to prove the injury was a result of an accident, not the result of gradual change over time, but not to establish that the injuries are “injuries” within the meaning of Workers’ Compensation statute. When a single mechanical or structural change establishes that the worker was involved in an accident, all injuries causally connected to the accident are compensable.

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

OSHA watch

Regulatory agenda

The 2019 Regulatory Agenda had no surprises in its short-term regulatory docket but in the long-term schedule there was a surprise announcement about rulemaking activity for “Drug Testing Program and Safety Incentives Rule.” The proposed rule would solidify in a new standard the current position that the electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing. Other items on the long-term list, which means action is not expected in the next 12 months, include: musculoskeletal disorders injury and illness recording and reporting requirements, infectious diseases, process safety management and prevention of major chemical accidents, and shipyard fall protection and personal protective equipment in construction.

Additional regulatory actions under consideration:

RULE ANTICIPATED AGENCY ACTION
Beryllium rule for general industry Final rule December 2019
Communication Tower Safety Complete SBREFA May 2019
Emergency Response Initiate SBREFA May 2019
Lockout/Tagout Request for Information May 2019
Tree Care Initiate SBREFA June 2019
Update to the Hazard Communication Standard Notice of Proposed Rulemaking September 2020
Prevention of Workplace Violence in Health Care and Social Assistance Initiate SBREFA October 2019

For the full federal Unified Agenda and Regulatory Plan

Mugno withdraws from consideration

Re-nominated for Assistant Secretary of Labor for OSHA on January 16, Scott Mugno has withdrawn his name from consideration, extending the longest period without a permanent administrator.

Final rule expected to save $6.1 million as part of the Standards Improvement Project

The rule revises 14 provisions in the recordkeeping, general industry, maritime, and construction standards that may be confusing, outdated, or unnecessary. Reducing annual lung X-ray requirements, eliminating the collection of employee Social Security numbers and removing feral cats from the list of “rodents” in shipyard sanitation standards are among the 14 revisions.

Noteworthy the controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard was not included in the final rule.

More information.

Comments for possible update of lockout/tagout solicited

Comments on a possible update to the Control of Hazardous Energy (Lockout/Tagout) standard must be submitted before August 18. Emphasis is being placed on how employers have been using control circuit devices and new risks of increased worker contact with robots.

Noteworthy, the RFI does not mention the controversial “unexpected energization” but that does not mean it’s dead. The regulated community voiced opposition in the SIP IV process.

More information.

Webpage provides information on protecting workers from CMV exposure

A common virus, Cytomegalovirus (CMV), affects thousands of workers in childcare centers and healthcare facilities. These workers are at the greatest risk of exposure because the virus is often spread through saliva and other body fluids of young children. A new webpage on CMV, explains how to minimize health risks associated with workers’ exposure to this virus.

New oil and gas exploration safety video

video developed by a Training Institute Education Center features ways to prevent injuries and fatalities in the oil and gas industry. The video focuses on falls, transportation, struck-by/caught-in/caught between, hydrogen sulfide gas, and heat illness.

Enforcement notes

California

  • Morgan Hill, California-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, settled a civil lawsuit regarding workplace safety laws following the death of a mill worker. The company agreed to pay civil penalties, restitution, and costs totaling $375,000.
  • Mercer-Fraser Co of Eureka received four citations and $63,560 in penalties after a worker driving a truck collided with a front-end loader and suffered a serious head injury. Inspectors determined that the company failed to require seat belt use, develop and implement safe practices for workers operating haul trucks, and ensure that trucks were operated at safe speeds.
  • Carlton Forge Works received three citations related to crane operations and $51,185 in penalties when a worker suffered injuries after becoming pinned between a saw table and a workpiece.

Florida

  • After an employee suffered serious injuries from a fall at the Avery Square residential construction site in Naples, four residential construction contractors received 12 citations and fines totaling $220,114 for exposing employees to safety hazards. Southern Living Contractors Inc., Paramount Drywall Inc., operating as Paramount Stucco LLC, and Crown Roofing were cited for failure to provide fall protection and other violations and Sunny Grove Landscaping and Nursery Inc. was cited for exposing employees to struck-by hazards from falling debris.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Ohio-based Hiebert Bros. Construction LLC was cited for exposing employees to fall hazards after the worker was injured from a 26-foot fall at a construction worksite in Gainesville. The company faces penalties of $56,828.
  • Walt Disney Company has been fined $13,260 for failing to report two workers’ injuries in a timely manner.
  • Two citations alleging serious violations of the fall protection standard were confirmed against All-Pro Construction Services Inc., which had a pleaded the affirmative defense of unpreventable employee misconduct. The fine was reduced 10% to $8,149.
  • An online retailer of pet supplies, Chewy, Inc., faces the maximum penalty of $14,323 for exposing employees to struck-by and crushing hazards. An employee suffered fatal injuries while operating a stand-up industrial truck at the company’s Ocala plant.
  • Remodeling contractor, Stettinius Construction Inc of Winter Haven, faces $26,142 in proposed penalties after a worker suffered a fatal fall at a worksite in Naples.

Georgia

  • Kumho Tire Georgia Inc., Sae Joong Mold Inc., and J-Brothers Inc. received 22 citations and collectively face $523,895 in proposed penalties after a follow-up inspection found safety and health hazards at the tire manufacturing facility in Macon. $507,299 of the proposed penalties were issued to Kumho Tire Georgia Inc., which failed to submit abatement documents and was placed in the Severe Violator Enforcement Program.

Missouri

  • DDG Construction Services Inc., based in Charlotte, North Carolina, faces $98,693 in penalties for exposing workers to fall hazards at a commercial site in Springfield. The company has been cited for more than 15 fall violations since 2014.
  • Belfor Property Restoration and subcontractor Custom Crushing & Company, both based in Kansas City, were cited for failing to comply with asbestos removal standards while performing rehabilitation work at Kansas State University’s Hale Library in Manhattan. Custom Crushing & Company faces $193,596 in proposed penalties, and Belfor Property Restoration faces proposed penalties totaling $39,780.

New York

  • In Secretary of Labor v. All Wall Builders LLC, a judge held that East Syracuse-based All Wall Builders LLC had committed a serious safety violation of the fall protection standards. After the company agreed to participate in a voluntary state site inspection program and followed up with recommendations on further training, the judge reduced the proposed penalty by $1,622, bringing the total penalty to $5,622.

Nebraska

  • After two employees were seriously injured in a trench collapse at a construction site in Lincoln, T.H. Construction Co. was cited with one willful violation of trench safety standards and faces $106,078 in penalties.
  • A steel erection company, Daubert Construction, based in Fremont, was cited for failing to protect employees from fall hazards and faces $19,890 in penalties.

Pennsylvania

  • A general duty citation against Johnstown-based Berkebile Auto Service Inc. after a tow truck driver was fatally injured was upheld by an administrative law judge of the Occupational Safety and Health Review Commission. The company was assessed a $3,803 penalty.
  • Champion Modular Inc. was cited for exposing employees to safety and health hazards at its Strattanville facility. The company faces $687,650 in penalties. The inspection was initiated after an employee suffered an amputation. Violations related to machine guarding, fall protection, and training workers on hazard communication and hearing conservation.

For additional information.

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

5 ways to make visual communication more effective

Much has changed in the area of safety communications. Gone are the days when wordy messages printed on paper with a burst of color sufficed. The channels for communication are many, including email, signage, bulletin boards, intranet, tool talks, meetings, apps, videos and so on. Furthermore, workers from different generations have different communication preferences. So it’s understandable that employers struggle to simplify their workplace communication and keep it relevant.

Here are 5 suggestions:

  1. MessagingSafety communications must resonate with workers or they will be forgotten or ignored. Know your takeaway and keep it simple. Focusing on real-life incidents with the use of visuals and a few powerful words that engage emotions is most impactful. Not only are they remembered longer, they are more visible from a further distance and reach a multi-language workforce. This contrast in messaging was shown in a recent webinar by The Marlin Company.
  2. Keep it fresh and repeatEven the best messaging gets stale. A cardinal rule in advertising known as the Rule of Seven says that a prospect needs to see or hear your marketing message at least seven times before they take action and buy from you. Using different channels can help convey a consistent message in different ways, but not all workers have access to email and their smartphones during working hours. Signage is often a solution.

    Yet over time, static signage can have a wallpaper effect – present but unseen. Digital signage offers great opportunities here. It is easily changed, software updates can be done for multiple locations, and employers aren’t dependent on personnel physically rotating signs. Multiple screens enable employers to target groups of workers and display unique content for the area in which they work. Messaging for call center personnel can differ from those in production.

  3. PlacementWhile proper placement seems like a no brainer, employers commonly get it wrong. Signs that are too far from a hazard aren’t effective because employees may not be able to see the hazard, making it easy to ignore. If a sign is too close to a hazard, employees may not have enough time to take precautions. And they need to be at eye level and not obscured.
  4. Be strategic 
    • Too much communication can send mixed messages and be confusing. Workers can ignore all of it because it’s just too much to take in at one time, or simply not really see it because something else caught their attention.
    • Keep it short. Unless there is a captive audience, videos should be less than a minute. Think of them as a commercial. Emails and texts should be concise and clear.
    • If there is a captive audience and a PowerPoint is used, put one topic or idea on each slide with appropriate graphics, then talk about it in plain language. Don’t read from the slides.
    • Be selective about the messaging you use in places where employees gather -breakrooms, cafeterias or time clock areas. Promoting health and wellness programs, recognizing employees, information on company events, and appropriate humor can be appropriate here.
  5. Have workers contribute contentTap experts on staff and use them in your messaging. It’s often been said that Millennials are the selfie generation and that the sweet spot to reach Millennials is a 30 – 60-second video, particularly if they are in it. But workers of all ages value recognition even though most are reluctant to step forward and volunteering to participate is not human nature. Invite workers to share stories from their own work histories about how following a safety practice protected them or a co-worker – or near misses or mistakes that could have been prevented. Stories are memorable.

Case study:

An article in the March issue of Risk and Insurance told the story of the Vermont School Board Insurance Trust (VSBIT) challenges of frequency and costs of claims related to snowy weather and icy paths. Shoveling and salting sidewalks were only as effective as the staff involved and the commitment of leadership to safety.

After exploring solutions, they embarked on a pilot program at 10 schools, placing signage at every entrance and exit, alerting passersby of icy conditions. A small mechanism would change colors – from silver to blue – when temperatures dropped below 37 degrees (car warning start at 37 degrees because icy conditions are not always obvious).

These schools had 39 losses that cost almost $240,000 the prior 5 years. After implementation, the same schools had only one slip and fall in total. The feedback from member schools was all positive and the program is expanding.

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

Important information on the classification of independent contractors vs. employees

Department of Labor opinion letter

Issued April 29, the opinion letter addresses whether a service provider for a virtual marketplace company is an employee of the company or an independent contractor under the FLSA. It concludes that the workers who provide services to consumers through this company’s virtual platform are independent contractors, not employees of the company. To make this determination, the Department’s Wage and Hour Division applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent:

  • The nature and degree of the potential employer’s control
  • The permanency of the worker’s relationship with the potential employer
  • The amount of the worker’s investment in facilities, equipment, or helpers
  • The amount of skill, initiative, judgment, or foresight required for the worker’s services
  • The worker’s opportunities for profit or loss and
  • The extent of integration of the worker’s services into the potential employer’s business

Other factors also may be considered. The DOL “does not determine employee status by simply counting factors but by weighing these factors in order to answer the ultimate inquiry of whether the worker is ‘engaged in business for himself or herself’ or ‘is dependent upon the business to which he or she renders service,'” stated the letter.

While the opinion deals with a specific company, wages, and fair labor standards and is not legally binding, legal experts suggest it has an effect beyond the employer addressed in the letter. Under the Trump administration there is more flexibility in defining independent contractors and the likelihood that some employer/employee relationships would be challenged is lower.

The key issue is control. When classified as independent contractors, workers should be able to control their own schedules, work in other jobs or businesses, choose whether to accept a project, and not receive extensive training.

Cautionary note: The opinion letter is based on the facts presented by the company and these facts may not be true of other gig economy workers. It does confirm employers must conduct the six-factor test when confronted with a classification question. Further, employers still must abide by laws in states such as California, Massachusetts, Connecticut and New Jersey that are more restrictive.

National Labor Relations Board memorandum

The National Labor Relations Board (NLRB), handed an important victory to Uber when it determined that the company’s drivers are contractors, not employees. In the first major policy action concerning the gig economy, the NLRB’s move relates primarily to unionization and other collective activities.

The decision was outlined by the board’s general counsel in a memorandum dated April 16, but made public in mid-May. In effect, the action tells gig economy workers not to report labor abuses to the Board because they are outside its jurisdiction. This judgment and the opinion letter cited above reverse the stance of the Obama administration that people who found work through apps could be considered employees. While the memo can be reversed by future general counsels, it carries considerable weight in how the Board enforces the law.

California: Independent contractor classification dealt another blow – ABC test must be applied retroactively

About a year ago, the California Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors in Dynamax vs The Superior Court of Los Angeles County. In a subsequent case, Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders. A May 3 letter from the California DLSE confirmed that the Dynamex decision extends to obligations imposed by the Industrial Welfare Commission wage order, making employers who misclassify workers responsible for California Labor Code obligations such as overtime, minimum wage, reporting time pay, record-keeping, business expense reimbursement, and meal and rest periods.

Moreover, the case was remanded, and pending legislation (AB5) would extend the reach of Dynamex’s ABC independent contractor assessment to unemployment and disability insurance and workers compensation.

Recently, the U.S. Court of Appeals for the Ninth Circuit held that the “ABC” test, used in the employee-versus-independent contractor analysis in cases involving IWC Wage Orders, must be applied retroactively. The ruling in Vazquez v. Jan-Pro Franchising Int’l Inc. means that the “ABC” test not only will be applied to cases going forward, but also to disputes dating back to before the new test was enacted. Based on California’s statute of limitations, employers could be liable for misclassifying workers as contractors going back four years before the 2018 decision.

The decision has significant implications for businesses using a franchise model or independent contractor model, including gig economy companies, since employees have more rights and benefits than independent contractors. The court essentially held that the “ABC” test applies to both a franchisee and the parent franchisor when deciding whether a group of workers are formal employees, pointing to increased exposure to liability for franchisors.

The unanimous federal appeals court ruling vacated an earlier dismissal of the complaint, and remanded the issue back to the lower district court, with instructions to follow the test issued in the Dynamex ruling. California employers who routinely enter into independent contractor arrangements with individuals should promptly and carefully review the status of those workers.

Note: AB5 advanced May 29 with the state Assembly passing the legislation 59-15

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

Highlights of the 2019 NCCI Symposium

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation, and prepares insurance rate and loss cost recommendations, holds an Issues Symposium. The theme of the program is always described in one word that describes the current workers’ compensation environment.

Bill Donnell, president and CEO, identified the 2019 word as “delivering.” “…we should never, never lose the thought that we deliver for injured workers. So this idea of delivering on a 100-year-old promise is a very powerful statement. It distinguishes workers’ compensation from other safety nets.” A short,compelling video, Back to Work: The Faces of Workers Compensation, told the story of how workers comp supported four employees to find the strength and commitment to recover from devastating injuries. Focusing on and motivating the person behind the injury is key to successful outcomes.

State of the Line

Presented by NCCI’s chief actuary, Kathy Antonello, highlights of the State of the Lineinclude:

  • Net written premiums for private carriers rose from 39.8 to 43.2 billion. Most of this increase can be attributed to tax law changes and carriers keeping the money onshore.
  • While payroll increased, this was offset by lower rates so the overall direct written premium was flat 2017 vs 2018.
  • Workers compensation combined ratios decreased 6% from 89% to 83%. 2018 was the lowest workers’ compensation combined ratio on record since the 1930s. This was attributed to the improvement in the underlying loss ratios as a result of underwriting discipline in a low-interest environment.
  • California, Illinois, and Florida saw an overall decrease in premiums as declining premiums offset increased payroll.
  • Overall reserve position for carriers is $5 billion redundancy. “A redundant workers’ compensation reserve position has not been observed in at least 25 years.”
  • In 2018, every NCCI state except Hawaii saw rate decreases. The most significant was Tennessee with a 19% decrease.
  • Indemnity claim severity in NCCI states increased 3%.
  • Medical lost time severity increased 1%.
  • Accident claim frequency decreased by 1%. This is the lowest decrease since 2011. The tight labor market, which means less qualified, younger, and more deconditioned workers in the workforce, could have contributed to the lower decline in frequency. Carriers also saw an increase in slip/fall claims due to the harsher winter in 2018.

Can this good news continue is a common question. While there is no way to predict the future, NCCI CEO Bill Donnell speculated that large swings might be mitigated by two factors. Improved analytics and faster access to data allow stakeholders to see the impact of their decisions and quickly make corrections, and investment in competencies around core processes, such as claims handling, underwriting, and reserving processes add to stability.

On the other hand, the regulatory landscape always has a big impact on the workers’ compensation world, as well as domestic and global affairs. Issues such as marijuana, opioids, opt-out, and post-traumatic stress disorder loom large in states, and the lack of infrastructure spending and a trade war with China could spell bad news for the comp industry looking forward.

Recent studies

Barry Lipton, Practice Leader and Senior Actuary for NCCI discussed a variety of recent NCCI studies .

Key takeaways:

  • Group Health (GH) vs. Workers’ Comp (WC) pricing: Costs for physician services are 77% higher in WC than GH. Price differences were mainly driven by the quantity of services not fees for service. On average, WC prices were about 12% higher per service than GH. However, WC performed 60% more services on similar injuries than GH.
  • NCCI Experience Rating Modification: Mods are good predictors of loss outcomes across all industries and Mod types. NCCI sees opportunities to improve predictive power and accuracy and is undertaking a major review of the system.
  • Mega claims: The number of mega claims (over $10 million) reported in 2017 and 2018 has dropped back down to long-term average values from an uptick in 2016. However, it remains a top concern and more studies are expected.

Physicians’ view of workers compensation

panel discussion highlighted the challenges physicians face in working within the workers’ comp system. There is a dearth of occupational medicine physicians in the US (3300) and occupational medicine is not part of education in most medical schools. Many treating physicians don’t understand the medical benefits of work and the effects on patients who are out of work for extended periods of time.

Both primary care and occupational medicine physicians have substantial recordkeeping requirements, discouraging specialization in these areas for other more financially rewarding areas. Moreover, case management time is often not billable. Payers and patients complain that they are not getting enough information. Too much time is spent filling out the forms on the computer, which often means clicking boxes rather than a narrative.

Quality of care, return to work, and medical outcomes do not get the priority they should. Network referral requirements can prohibit the best care options. Telemedicine is gaining traction in the group health setting but much less in workers’ compensation and some feel it is best used for follow-up in comp. Personal interaction can keep the return to work messaging on track.

Opioid use and excess physical therapy are the biggest cost drivers on workers’ compensation claims. Other factors include co-morbid conditions, mental disorders, and legal involvement.

Takeaway: Good occupational medicine physicians are a valuable asset. Take time to understand the challenges they face and the best way to work with them.

Other presentations

For more information.

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Things you should know

Deadline to submit pay data to EEOC extended

A federal court judge has granted the EEOC’s request to extend the deadline for employers to report equal pay data (known as Component 2) of the EEO-1 to September 30, 2019. Notice has been posted on the EEOC website.

Preventing falls in construction: NIOSH issues fact sheet

NIOSH has published a new fact sheet intended to help construction employers and workers prevent falls from roofs, ladders, and scaffolds.

FMCSA webpage answers FAQs on upcoming database of CMV drivers who fail drug, alcohol tests

The Federal Motor Carrier Safety Administration (FMCSA) has created a webpage that outlines specifics of the Drug and Alcohol Clearinghouse, a national online database intended to provide – in real time – the names of commercial motor vehicle drivers who have failed drug and alcohol tests.

‘Dirty Dozen’ list of workplace safety violators released

The National Council for Occupational Safety and Health (NCOSH) released its 2019 “dirty dozen” companies that the organization says failed to protect workers from preventable illness, injury and death.

This year’s list includes:

  • Amazon.com Inc., Seattle
  • Atlantic Capes Fisheries Co., Cape May, New Jersey, and the staffing firm it uses, B.J.’s Service Co Inc., New Bedford, Massachusetts
  • Bedrock Detroit LLC, Detroit
  • Beiza Brothers Harvesting LLC, Moultrie, Georgia
  • Facebook Inc., Menlo Park, California, along with contractors Accenture PLC, Cognizant Technology Solutions Corp., PRO Unlimited Inc. and Tech Solutions Co.
  • Genan Inc., Houston
  • Integra Health Management Inc., Timonium, Maryland
  • The Johns Hopkins Hospital, Baltimore
  • McDonald’s USA LLC, Oak Brook, Illinois
  • Purdue Pharmaceuticals LP, Stamford, Connecticut, and the opioid industry
  • Tooma Enterprises Inc., Sterling Heights, Michigan
  • XPO Logistics, Greenwich, Connecticut

 

Report on women and safety in the workplace

The American Society of Safety Professionals (ASSP) released a report on women and safety in the modern workplace. The report focuses on three main challenges faced by women and offers potential solutions.

WCRI releases comp state trends reports

The 18 states in the CompScope report are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin.

According to an article in Business Insurance, key findings include:

  • The median indemnity costs per claim across the states for three years starting in 2015 was $17,778, with North Carolina, Pennsylvania and Georgia ranked in the top three and Wisconsin, Indiana and Texas in the bottom three.
  • The median cost per claim with more than seven days lost time between 2015 and 2018 was $41,888, with Louisiana, Pennsylvania and Virginia ranked in the top three and Minnesota, Tennessee and Texas in the bottom three.
  • The median medical payments per claim in 2017 was $13,524, with Wisconsin, Virginia, and Indiana ranked in the top three and Massachusetts, California and Texas ranked in the bottom three.
  • Twenty-nine percent was the median percentage of 2015 claims with more than seven days of lost time and 36 months of experience that had a defense attorney involved. Among the states with the highest attorney involvement were Illinois, New Jersey and California. Those with the lowest were Texas, Wisconsin and Minnesota.

New resource to help employers understand mental health issues

The DOL, in coordination with the Office of Disability Employment Policy (ODEP) and its Employer Assistance and Resource Network on Disability Inclusion (EARN), has launched a new resource, Mental Health Toolkit to help employers better understand mental health issues and to provide guidance on how to cultivate a supportive workplace.

Workers’ marijuana use major contributor to rise in positive drug tests, analysis shows

The rate of positive drug tests for illicit substances among U.S. workers in 2018 reached a 14-year peak, with marijuana playing a significant role, according to the annual Drug Testing Index from lab services provider Quest Diagnostics.

Researchers found that 4.4% of the combined U.S. workforce tested positive – up from 4.2% in 2017 and 2016 and the highest since 2004 when the rate was 4.5%. “Post-accident” positive tests showed rate increases: to 8.4% from 7.7% in 2017 among employees in the general workforce, and to 4.7% from 3.1% among workers in safety-sensitive jobs.

Boom lift scenario now part of NIOSH simulation tool

NIOSH has added a boom lift scenario to its Aerial Lift Hazard Recognition Simulator.

The training tool includes a scissor lift operation simulation, provides realistic workplace scenarios “to help potential aerial lift operators acclimate to aerial lift operation and to identify the common occupational hazards during use,” but is not intended to be a replacement for required training.

Protecting first responders from fentanyl exposure: NIOSH releases video

NIOSH has released a 13-minute video intended to protect first responders who face potential exposure to fentanyl – a synthetic opioid considered up to 50 times more potent than heroin – and other illicit drugs.

State News

California

  • The number of independent medical review determination letters calling for review of treatment denials and modifications peaked to 184,733 in 2018, 7.3% more than in 2017 according to the California Workers’ Compensation Research Institute. Full report.
  • 55% of medical bill reviews were overturned according to a report by the California Department of Industrial Relations.
  • The Workers’ Compensation Insurance Rating Bureau determined that the modest improvement in pure premium workers’ compensation rates so far in 2019 does not warrant a midyear filing.

New York

  • The New York State Workers’ Compensation Board announced that the maximum weekly wage benefit rate will climb, from $905 to $934, effective July 1.

Pennsylvania

  • Insurance Commissioner approved a nearly 13% reduction in loss costs for workers compensation insurance.

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

Legal Corner

ADA 
Trucking firm settles suit over pre-employment screenings

Greeley, Colorado-based JBS Carriers Inc., which is the transportation affiliate of multinational meat processor JBS USA Holdings Inc., contracted with a third-party administrator, Denver-based ErgoMed Systems, to administer pre-employment screenings. The EEOC found that all applicants were subjected to a medical history questionnaire, a physical examination and nine physical abilities tests, and if an applicant failed any one of the tests, ErgoMed sent a negative job recommendation to JBS, which withdrew conditional job offers based on its recommendations.

The EEOC alleged this process unlawfully screened out people with disabilities and reached a $250,000 settlement with JBS. Under terms of the settlement, JBS will not contract with ErgoMed for three years and not implement any physical or medical screening for conditional hires apart from the DOT medical certification and urine analysis, among other provisions.

Perceived disability sufficient to reinstate suit

In Jonathan C. Baum v. Metro Restoration Services, an employee who worked as a scheduler for Louisville, Kentucky-based Metro Restoration Services Inc., began having heart problems and occasionally missed work for medical concerns. After a severe weather hit in 2015, he worked remotely to coordinate crews. He was fired a week later and the company’s owner told him it was because of his health issues and doctors’ appointments.

He filed suit, charging he was fired both because he was disabled and because the company regarded him as disabled. A lower court dismissed the case because he did not present an expert witness, but an appellate court found a jury could find that Metro fired him because the owner thought he was disabled, and reinstated the case.

Workers’ Compensation 
Widow loses civil suit based on “power press” exception to exclusive remedy – California

In Ochoa v. Setton Pistachio of Terra Bella Inc., a widow of a man who died when another worker accidentally started the machine he was maintaining filed a wrongful death suit, arguing the machine was a power press that, under certain conditions, can be exempt from exclusive remedy. The court agreed with the defendants that the machine in question was a conveyor-style “auger” and not a press that used a die. A product liability claim was also rejected.

Sawmill pays $375,000 in settlement of civil suit related to workers’ death – California

Morgan Hill-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, was sued by the district attorney following the death of a millworker, who died in a bark conveyor that the employees regularly walked on while they were unjamming it. The DA’s office investigation found a culture of production over safety at the mill and that the sawmill and its two other facilities in Sonoma County did not have written procedures for employees to work on, unjam or clean machinery and equipment.

Secondary treatment issues clarified – California

In a panel decision, Pena v. Aqua Systems, it was clarified that secondary treatment requests do not have to be initiated by the PTP and that selection of a secondary treater is not subject to Utilization Review (UR) and, therefore, does not require a Request for Authorization (RFA). Failure to promptly respond to and approve secondary treatment requests is likely to result in a penalty assessment.

Six-month limit on mental injuries upheld – Florida

In Kneer v. Lincare & Travelers Ins., an appellate court ruled that an employee was not eligible for benefits for psychiatric injuries because they occurred more than a year after he had reached MMI on his back injury. The court said the claim for temporary benefits for the mental condition was untimely because there is a six-month limitation for temporary benefits for psychiatric injuries (which follow a physical injury).

Remote workers beware: trip over dog not compensable – Florida

In a 12-2 decision, Sedgwick CMS v. Valcourt-Williams, an appeals court reversed the decision of a workers’ compensation judge. Working in Arizona, a home-based workers’ comp claims adjuster tripped over one of her two dogs, causing her to fall and sustain injuries to her knee, hip and shoulder as she was getting coffee in her kitchen. The court noted that there are limitations to the “arising out of” rule when risks unrelated to work lead to the injury. In this case, her non-employment life (her dog, her kitchen, reaching for a coffee cup) caused the accident, not her employment.

“One Day Rest in Seven” can’t circumvent exclusive remedy – Illinois

In Webster v. FirstExpress, Inc., a federal district court held that the state’s “One Day Rest in Seven Act” may not be used to circumvent the exclusive remedy of the Workers’ Compensation Act. An employee of a tire service company was killed in a collision with a vehicle owned by FirstExpress, Inc. It was argued that the worker had been required to work mandatory overtime and failed to get a full day of rest as called for in the statute. However, the court ruled that the employer was immune from tort liability because its actions did not rise to the level of “specific intent” to harm.

High court clarifies application of treatment guidelines – Minnesota

In Johnson v. Darchuks Fabrication, an employee was diagnosed with complex regional pain syndrome following a work-related incident. As part of the settlement, the company paid for ongoing medical expenses, which included over ten years of opioids. The employee was asked to go through a fourth IME, and for the first time, the medical examiner expressed doubt about the diagnosis. As a result, the company notified the employee it was discontinuing coverage for the medication. It argued the complex regional pain syndrome had been resolved and that the long-term opioid use did not comply with the workers’ compensation treatment parameters.

The case found its way to the Supreme Court and the company argued that the treatment parameters applied in this case. The court agreed, noting the treatment parameters do not apply when liability for the benefits has been denied, but a challenge to the reasonableness and necessity of treatment is not a denial of liability. It ordered the case remanded for further proceedings.

PPD award for fall in employer’s parking garage affirmed – Missouri

In McDowell v. St. Luke’s Hosp., an appellate court affirmed a decision by the state’s Labor and Industrial Relations Commission awarding workers’ compensation benefits to an employee who fell while bringing her belongings from the garage to her work station. While the state statute generally means benefits are denied when the hazard or risk is one to which the worker would have been “equally exposed outside of and unrelated to the employment in normal nonemployment life,” the court found that her fall was the result of her need to pull and maneuver a two-wheeled cart containing work-related supplies through a congested entryway and, therefore, was compensable. She did not face such a hazard in her non-employment life.

The worker, who had worked for the hospital for 45 years, had undergone a hip replacement and used a cane. The hospital had provided her with the two-wheeled cart to transport her belongings from the garage during her recovery.

No survivor benefits for daughter of deputy killed in car crash while exchanging shift information on his cell phone – Nebraska

In Coughlin v County of Colfax, a deputy sheriff was driving home and on his cell phone exchanging shift information with another officer who just came on duty when his vehicle hit a deer’s carcass. He lost control of the car, collided with another vehicle driving in the opposite lane of traffic, and died.

His brother filed a workers’ comp claim, which was denied based on the going and coming rule. The course and scope of employment had not been expanded by the cell phone conversation, in spite of its work-relatedness. It was determined that he was in his personal vehicle and off duty at the time of the accident.

An appellate court considered whether the cell phone communication was an employer-created condition that rendered the going and coming rule inapplicable. It found that although the Department expected the deputy to exchange shift-change information, it did not prescribe any one way of doing so and, in fact, had a cellphone policy that prohibited using a cell phone while driving a county-owned vehicle. The denial was affirmed.

Appellate court overturns decision to disqualify worker from future benefits – New York

In Matter of Persons v Halmar Intl, an appellate court overturned a decision by the Workers’ Compensation Board that disqualified an injured construction laborer from receiving future wage replacement benefits because he made false statements about his physical condition in violation of the law. The appellate court found that the Board’s findings based on video footage of his work as a volunteer firefighter and another video were inaccurate and could not be ascertained without further medical testimony. Further, the worker had acknowledged and disclosed his work as a volunteer firefighter.

The court concluded, “Simply put, our review of the record reflects that the Board’s decision [was] not supported by substantial evidence as it [was] based upon speculation, surmise and mischaracterizations.”

Law barring undocumented workers from additional benefits upheld by high court – Tennessee

The Supreme Court ruled that a state statute limiting the benefits available to a worker without legal authorization to work in the United States is not pre-empted by federal immigration law. The case, Salvador Sandoval V Mark Williamson, involved an undocumented worker for Tennessee Steel Structure who was injured on the job and received PPD benefits. He did not return to work after benefits ended and filed for additional benefits, but state law precludes benefits for anyone who is not eligible or authorized to work legally in the US.

The worker argued the law was unconstitutional because it was pre-empted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court concurred with the Special Workers’ Compensation Appeals Panel that the law does not conflict with any provision of the IRCA.

Attempt to guide hand truck does not constitute “lifting” in violation of safety rules – Virginia

In Snelling Staffing/Chesapeake & Ace Am. Ins. Co. v. Edwards, the employer argued that an employee violated a known rule that prohibited lifting more than 40 pounds without assistance when he was injured. The worker and a co-worker stacked three boxes of computers, each weighing approximately 120 pounds, on a hand truck. When the worker attempted to pull back on the truck, the weight shifted and he tried to steady it with his leg, injuring his back.

The appellate court agreed with the Commission that the employee’s actions did not constitute “lifting” in violation of employer’s safety rule.

Police officer’s slip on the grass not compensable – Virginia

In Conner v. City of Danville, a police officer was part of a surveillance team at a duplex and was interviewing a homicide suspect outside with a colleague. Rain turned to hail and a tornado was moving through, so they decided to seek shelter. She twisted her knee when she slipped on the grass and almost fell and reported the injury. Through treatment, it was found that three discs in her back had apparently been affected and that surgery was needed.

Her comp claim was denied by the deputy commissioner and affirmed by the Commission and an appellate court because her risk of exposure to the tornado was not increased because of her employment. The interview was suspended while they attempted to get out of the weather, which is an act of God. Therefore, this was not a work-related injury.

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

OSHA watch

Anti-retaliation provisions of electronic record-keeping rule survives employer challenge

An Occupational Safety and Health Review Commission (OSHRC) administrative law judge’s decision to reject two defenses offered by the U.S. Postal Service to a citation preserves the controversial anti-retaliation provisions under its electronic record-keeping rule. The USPS allegedly issued a seven-day working suspension to a carrier because he reported a work-related injury. The USPS argued that the alleged standard and/or penalties were invalid because they were beyond the legal power or authority of OSHA and/or were arbitrary and capricious.

Process Safety Management standard extended beyond hazardous chemicals in ruling

Legal experts warn that a recent OSHRC ruling regarding safety violations in a deadly oil refinery explosion in 2012 could have wider implications for companies dealing with highly hazardous chemicals. OSHRC affirmed 12 violations of Process Safety Management standard by Wynnewood Refining Co, which argued the PSM was never intended to include processes that do not manage such chemicals – such as the steam boiler involved.

Prior to this ruling, it was widely understood that utilities unrelated to the manufacturing process were not included in the requirements for PSM. Experts say it is unclear how far the standard extends now.

Social media campaign to educate young workers

#MySafeSummerJob, a social media campaign to educate young workers about their rights in the workplace, how to speak up about dangerous work conditions, and how to protect themselves on the job, was launched in concert with several worker safety organizations. From April 15 through May 17 outreach will promote safety among young workers. Check out materials and ideas at the #MySafeSummerJob website.

Regional construction safety campaign shifts focus to falls

In concert with the Mid-Atlantic Construction Safety Council, a four-month campaign was launched to address the four leading causes of fatal injuries in construction. In March, the campaign focused on electrical hazards, and during April the emphasis was on struck-by hazards. This month is falls, and caught-in / between hazards will be the focus in June. The campaign serves employers and employees in Delaware, the District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia.

Email OSHA-Focus4-Region3@dol.gov for more information.

OSHRC finalizes revisions to its procedural rules

The OSHRC has finalized what it calls “comprehensive” revisions to its procedural rules, in part to reflect technological advances. Slated to take effect June 10, the changes include mandatory electronic filing for “represented” parties and a new method intended to streamline calculating time periods.

Proposal to watch: joint employer revisions

The Department of Labor announced a proposal to “revise and clarify” the issue of joint employers. The department is proposing a four-factor test “based on well-established precedent” that would consider whether the potential joint employer actually exercises the power to hire or fire the employee; supervise and control the employee’s work schedules or conditions of employment; determine the employee’s rate and method of payment; and maintain the employee’s employment records.

The proposal could differ from the interpretations put forth by other federal agencies and would not nullify regulations promulgated by individual states that have different standards.

The public has 60 days from April 1 to comment on the proposal.

Webpage on radiation emergency preparedness and response launched

A webpage intended to educate workers about how to protect themselves in radiation-related situations ranging from a small, isolated spill in a laboratory to a potentially catastrophic release at a nuclear facility is now live. The Radiation Emergency Preparedness and Response webpage provides resources on health and safety planning, medical monitoring and dosimetry, and other relevant topics for workers “who may be impacted by radiation emergencies” or “who may be involved in emergency response operations or related activities.”

Cal/OSHA proposing to re-adopt emergency rules for e-filing injury reports

Emergency rules were adopted Nov. 1, 2018 and the re-adoption would give additional time to proceed with regular rulemaking on a permanent basis. In addition to requiring electronic reporting for companies with at least 250 workers, the rules require businesses with 20 to 249 employees in industries such as construction, manufacturing and agriculture to electronically file injury logs.

A notice for proposed permanent rules is expected to be published by May 10.

MIOSHA launches emphasis program on roadway accident

The state emphasis program on roadway accidents will run through December 31, 2019 and is intended to increase the priority of inspections related to construction roadway safety and initiate inspections upon observing a roadway project with workers present.

Enforcement notes

California

  • Cal North Farm Labor Inc., a farm labor contractor and Crain Walnut Shelling Inc. face more than $100,000 combined in proposed penalties after a worker was fatally crushed by a bin dumper at a walnut processing and packing facility in Los Molinos.
  • Staffing agency Priority Workforce Inc. and JSL Foods Inc., a maker and distributor of pasta and baked goods face more than $300,000 in fines for serious citations after a temporary worker lost two fingers cleaning machinery at a Los Angeles food manufacturing facility.
  • Accurate Comfort Systems Inc. received four citations and faces $75,750 in penalties after a worker suffered serious injuries in a fall from a ladder on a 12-foot-high work area.

Florida

  • Inspected as part of the Regional Emphasis Program on Falls in Construction, Florida Roofing Experts, Inc. faces $132,598 in fines after inspectors observed workers performing residential roofing activities without fall protection.

Georgia

  • Investigated under the National Emphasis Program on Trenching and Excavation, Riverside Military Academy Inc., a military college preparatory academy in Gainesville, was cited for exposing employees to trenching hazards, faces $381,882 in penalties, and was placed in the Severe Violator Enforcement Program. Citations included allowing employees to work inside a trench without cave-in protection and a safe means to enter and exit the excavation, and failing to locate underground utilities prior to work.
  • Specialty chemical manufacturer, Plaze Aeroscience, operating as Plaze GA, was cited for exposing employees to fire and burn hazards at the company’s facility in Dalton and faces $107,164 in penalties.

Michigan

  • Mt. Clemens-based Powder Cote II received seven citations and faces $65,000 in penalties for failing to provide fall protection or guardrail systems, guard rotating shafts and machinery, and failing to control the startup of machinery during maintenance.

New York

  • Remington Arms, LLC, based in Madison, North Carolina was cited for 27 violations of workplace safety and health standards and faces $210,132 in penalties after a worker’s fingertip was amputated while using an unguarded metalworking machine at its Ilion manufacturing plant.

Pennsylvania

  • Framing contractor, Navy Contractors, Inc. was cited for willfully exposing employees to fall hazards at residential construction sites in Royersford, Collegeville, and Center Valley after inspections saw employees working without fall protection. The company faces $603,850 in penalties.
  • A jury in the U.S. District Court for the Eastern District has found that Lloyd Industries Inc., a manufacturing company based in Montgomeryville, and its owner William P. Lloyd unlawfully terminated two employees because of their involvement in a safety investigation. Damages will be determined in phase 2 of the trial.
  • A jury has concurred with the findings of a whistleblower investigation and awarded $40,000 for lost wages, pain and suffering, and punitive damages to a former employee of Fairmount Foundry Inc. The employee claimed that the Hamburg iron-casting company terminated him for reporting alleged safety and health hazards.
  • New Jersey contractor, Brutus Construction, Inc. was cited for exposing workers to fall hazards at a Souderton residential construction site. Inspectors saw employees working on roofs without fall protection and the company faces nearly $182,000 in penalties.

Wisconsin

  • A follow-up inspection revealed that Beloit-based Avid Pallet Services, LLC, failed to correct violations related to wood dust and respiratory hazards. The company faces penalties of $188,302.

For additional information.

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

Ten most dangerous jobs

Going by the sheer number of on-the-job deaths, the truck drivers and sales drivers classification was by far the most dangerous, accounting for nearly 1,000 (987) deaths in 2017. However, the chances of a fatality are much higher in specific industries when the fatal work injury rate, calculated per 100,000 full-time equivalent workers, is used. According to a recent report in EHS Today, the ten most dangerous jobs of 2019 are:

No. 1 – Fishers and related fishing workers

Moving up from number 2 to become the most dangerous profession, fishers and related fishing workers experienced 41 fatalities in 2017, an increase of almost 58% from 2016. The fatality rate was 99.7 per 100,000 full-time equivalent workers. Risks: drowning, struck by lightning, crushed by equipment.

No. 2 – Loggers

Falling from the most-dangerous profession to number 2, loggers experienced 55 fatalities, a drop of almost 65% from 91 fatalities in 2016 for a fatality rate of 84.3. Risks: falls, struck-by, dangerous tools such as chainsaws and axes.

No. 3 – Aircraft pilots and flight engineers

Pilots and flight engineers experienced 59 fatalities in 2017 for a fatality rate of 58.6, a drop from 2016. Risks: crashes.

No. 4 – Roofers

Roofers experienced 91 fatalities in 2017 for a fatality rate of 45.2, slightly lower than in 2016. Risks: falls, struck-by, and heat.

No. 5 – Refuse and recyclable material collectors

Refuse and recyclable material collectors experienced 30 fatalities in 2017 for a fatality rate of 35.0, very similar to 2016. Risks: dangerous machinery, crushed by equipment, struck-by, traffic accidents, struck by vehicle.

No. 6 – Structural iron and steel workers

Steel and ironworkers experienced 14 fatalities in 2017 for a fatality rate of 33.4, a slight decrease from 2016. Risks: falls, struck-by, heat, crushed by materials.

No. 7 – Truck drivers and other drivers

Employees who drive for work – including truck drivers – experienced 987 fatalities in 2017 for a fatality rate of 26.8 out of 100,000 workers, which was higher than in 2016. Risks: traffic accidents, struck by vehicle, other drivers, construction zones, sleep deprivation, texting/talking while driving.

No. 8 – Farmers, ranchers, and agricultural managers

Agricultural workers experienced 258 fatalities in 2017 for a fatality rate of 24.0 out of 100,000 workers, very similar to 2016. Risks: dangerous machinery, chemicals, heat.

No. 9 – Grounds maintenance workers

Grounds maintenance workers experienced 244 fatalities in 2017 for a fatality rate of 21.0, a decline from 2016. Risks: heat, cold, noise, chemical exposure, ergonomics-related issues, machinery.

No. 10 – Electrical power-line installers and repairers

New to the list, electrical power-line installers and repairers experienced 26 fatalities for a fatality rate of 18.7. Risks: electrocution, falls to a lower level, transportation incidents.

Supervisors of construction workers (which ranked at #9 last year), fell off the list of the top 10.

Other key findings:

  • There were a total of 5,147 fatal work injuries recorded in the United States in 2017, down slightly from the 5,190 that were registered in 2016.
  • Fatal falls were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries (CFOI), accounting for 887 (17 percent) worker deaths.
  • Transportation incidents remained the most frequent fatal event in 2017 with 2,077 (40 percent) occupational fatalities.
  • Violence and other injuries by persons or animals decreased 7 percent in 2017 with homicides and suicides decreasing by 8 percent and 5 percent, respectively.
  • Unintentional overdoses due to non-medical use of drugs or alcohol while at work increased 25 percent from 217 in 2016 to 272 in 2017. This was the fifth consecutive year in which unintentional workplace overdose deaths have increased by at least 25 percent.
  • Fatal occupational injuries involving confined spaces rose 15 percent to 166 in 2017 from 144 in 2016.
  • Crane-related workplace fatalities fell to their lowest level ever recorded in CFOI, 33 deaths in 2017.
  • Fifteen percent of the fatally-injured workers in 2017 were age 65 or over – a series high. In 1992, the first year CFOI published national data, that figure was 8 percent. These workers also had a higher fatality rate than other age groups in 2017.

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