Legal Corner

ADA

Employer can require reassessment of restrictions

In Booth v. Nissan North America Inc., the 6th US Circuit Court of Appeals found that Nissan did not violate the ADA when it required an employee on its assembly line to have a doctor review his restrictions to determine if they could be adjusted to allow him to perform more tasks. The company had accommodated the job restrictions for some time and then restructured the assembly line to include more tasks. When the employee claimed this would violate his job restrictions, the company asked him to get a new assessment and the doctor cleared him to perform the tasks. An employee under a work restriction does not have an automatic right to a preferred position or to prevent having the restriction re-evaluated from time to time, based on the legitimate business needs of the employer.

FMLA

Employer can ask employee to explain misconduct while on FMLA leave

While employers can’t make an employee on FMLA leave do work or participate in on-call activities, the 3rd Circuit Court held that they can insist upon a prompt response to allegations of misconduct, including serious breaches of policy as in Reagan v. Centre LifeLink Emergency Medical Services Inc. Prior to her leave, the employee had started her own business that competed with LifeLink. When the company found out, they required her to sign a non-compete agreement to continue employment. While the employee was on FMLA leave for a non-work-related injury, her supervisor discovered several breaches of the non-compete agreement.

The general counsel sent a letter to the employee requesting explanations within 10 days for the apparent violations. The employee responded by email one day after the due date and did not address the concerns, but said she was seeking legal counsel. The company immediately fired her and she sued in federal court, claiming that LifeLink interfered with her rights under the FMLA. LifeLink filed a motion for summary judgment seeking dismissal of the claim, which the district court granted.

Workers’ Compensation

Injured worker receives $630,000 in damages on disability and retaliation claim – California

In an unpublished decision, Abarca v. Citizens of Humanity LLC, the 2nd DCA upheld an award of $630,000 in damages to an injured worker on his disability discrimination and retaliation claim. When he experienced pain, he was referred to HR, but was not advised to fill out a claim form. When a doctor imposed restrictions, he was fired. He sued asserting retaliation, disability discrimination, wrongful termination, and other violations of the Fair Employment and Housing Act. A second doctor diagnosed him with degenerative disk disease, insomnia, anxiety, and depression and opined he was temporarily totally disabled.

Question of Social Security eligibility nixes PTD for injured worker – Florida

In SBCR Inc. v. Dos, an appellate court overturned an award of PTD for an injured worker when he turned 62. A JCC had awarded the benefits believing the employee did not meet the requirements for Social Security disability to have at least 40 quarters of coverage by age 62. The worker stated his injury prevented him from working enough, but provided no documentation of his denial. Therefore, the court found there was not enough evidence to support the JCC’s award.

Widow denied death benefits for husband’s auto accident – Massachusetts

In Yang’s Case, an appellate court upheld earlier rulings that a business owner’s death in an auto accident was not work related. The case demonstrates the complexity of intertwined businesses as the deceased owned a business in Massachusetts, which had comp coverage and one in New Hampshire that did not. Despite being a separate company in a separate state with no connection other than ownership, the company’s finances were entwined.

When the NH company failed, he closed it. He was traveling to NH to meet with a prospective buyer of the property when the accident occurred. The court agreed with earlier rulings that he was traveling to serve his personal interests.

State supreme court overturns benefits for Ex-NFL player with head trauma – Minnesota

In Noga v. Minnesota Vikings Football Club, a former defensive linesman for the Minnesota Vikings, was denied compensation for dementia arising from head trauma because the statute of limitations had passed. The ruling reversed an award of total permanent disability benefits. He stopped playing football in 1994 and was awarded comp for orthopedic injuries in 2004. At the time, the doctor identified neurological issues, including blackouts and headaches, which could be attributed to injuries incurred while playing for the Vikings.

He became legally blind and was diagnosed with dementia in 2011 and filed a comp claim for the head injuries in 2015. The six-year statute of limitations had passed since both Noga and the Vikings knew of the issue in 2004, but Noga argued the team waived the statute of limitations because they acknowledged he had a neurological health issue when they treated him while playing. The supreme court disagreed.

Court of appeals revives teacher’s case for benefits for fall injuries – Missouri

In Maral Annayeva v SAB of the TSD of the City of St. Louis, an ALJ and the Labor and Industrial Relations Commission denied benefits for a teacher who fell after entering the building. The denial was based on the employee’s credibility and medical opinions based on subjective descriptions, as well as the questioning of her attorney. Although she initially described the floor as “normal,” upon questioning by her attorney she mentioned dirt, ice, dust and moisture.

The court of appeals reversed and remanded the commission’s decision, finding there was no conflicting evidence or testimony to dispute the employee’s statements about the condition of the floor. The court ruled the employee’s injury did arise out of her employment because she was required to walk the hall each day to clock in, thus, she was exposed to the inherent condition of the employer’s workplace.

Lack of English skills not sufficient reason to excuse compliance with the notice statute – New York

In Matter of Nukicic v. McLane Northeast, an appellate court found that the Workers’ Compensation Board (WCB) acted within its statutory powers when it found that a worker failed to provide the employer with the required notice of injury. The truck driver, who was not proficient in English, told two supervisors that he had pain in his knee and that a physician placed him “off work” for a short period. However, he never connected the pain to his work.

Heart attack after dealing with difficult customers did not arise out of an in course of employment – New York

In Issayou v Issayuou Inc, the owner of a hair salon sustained a heart attack minutes after dealing with difficult customers. The WCB found the employer’s medical expert, who concluded the condition was advanced, triple vessel, obstructive coronary artery disease, most credible. The appellate court agreed and also noted that the level of stress faced by the salon owner was no greater than that experienced by other similar workers.

Paralysis from car accident not compensable – North Carolina

In Bache v. Tic-Gulf Coast, the Court of Appeals affirmed an Industrial Commission’s finding that a traveling worker was not in the course and scope of his employment when he was in a car accident that took place after he had dinner and a beer. The employee, who lived in Florida, worked for a company that had been contracted to perform construction at a power plant in Wayne County. He received an hourly rate and a per diem rate to cover duplicate living expenses.

While driving home from a restaurant after work, he was in a single car accident that left him paralyzed from the waist down. He had a blood alcohol level of 0.10. He filed for comp benefits, arguing he was a traveling employee and that state law provides that “employees whose work requires travel away from the employer’s premises are within the course of their employment continuously during such travel.”

However, an appellate court upheld earlier rulings denying benefits. He was living locally and his job was conditional on his moving to North Carolina for the two-year project. It was unlike a business trip and the travel was entirely personal.

Rare comp and tort claim net settlement of over $9 million – North Carolina

A temp employee who was assigned to work for a manufacturer as a janitor suffered severe burns over most of his body in an explosion. Initially, the temp agency was identified as the employer, but when an issue of negligence was raised, the plant argued that the worker was a joint employee of the factory and of the temp agency and it was protected by the exclusive remedy of workers’ comp.

However, the contract between the plant and the temp agency clearly stated that the temp agency was to be considered the employer. Therefore, the tort claim against the plant could proceed. Mediation and reports from expert witnesses showed the factory had violated its own safety policies and was vulnerable to a negligence claim and heavy damages. The tort claim was settled for $8 million and the workers’ comp carrier agreed to waive the subrogation lien and pay a settlement of $1.25 million.

The terms of the settlement require that the names of the factory, its insurer and the worker be kept confidential.

Bank teller’s carpal tunnel not compensable – Pennsylvania

In Elsa Olivo v. Workers’ Compensation Appeal Board et. al., the Commonwealth Court affirmed the ruling of an WCJ and the WCAB that a bank teller failed to prove that her work caused her carpal tunnel. She had worked as a teller for eight years and spent about 25% of the time counting money and sought total disability after being diagnosed with carpal tunnel syndrome in both wrists.

Two examining doctors opined that she was able to return to work with no restrictions and an IME found that she exaggerated her symptoms. One of the doctors noted “for something to be deemed work-related carpal tunnel it would have to be something that involves a high force, (high) torque vibration situation…bank teller not being one of them.”

Violation of restraint policy does not nix benefits – Tennessee

While a residential treatment facility argued an employee violated its policies, the Supreme Court’s Special Workers’ Compensation Appeals Board ruled he was entitled to benefits for an injury he sustained while trying to restrain a patient because he did not willfully violate the policy. Further, it was noted the facility failed to show they engaged in a serious enforcement of the policy.

In Tennessee Clinical School v. Johns, a relatively new employee was asked to stay beyond his shift and get a group of teenage boys up for breakfast. One boy resisted, and when a scuffle occurred, the employee attempted to restrain the boy and seriously injured his shoulder. The court found the restraint policy was not a “hard and fast rule” and permitted restraining actions if a resident posed a threat.

Psychological injuries from assault compensable – Tennessee

In Natchez Trace Youth Academy v. Tidwell, the Supreme Court affirmed a trial court’s disability finding and monetary award to an employee, who was injured by a youth living at the residential treatment facility where he worked. His facial injuries required plastic surgery. Following a week’s time off, he returned to light duty with the stipulation he would not have to interact with the residents.

However, when staff did not arrive to replace him he was required to wake up the children. He began to experience anxiety and depression. Although he was released for full duty work without restrictions, it was unclear if this was just for his physical injuries. He did not contact the Academy and they considered him to have abandoned his position.

A trial court ruled he suffered an injury and developed depression and PTSD as a result of the incident and required a psychiatric evaluation before returning to work. The court awarded him nearly $100,000 in disability as well as additional unpaid temporary total disability benefits.

Two-cause rule does not apply to cases involving dissimilar disabilities – Virginia

In Virginia,when a work-related disability combines with a nonwork-related disability to prevent the employee from working, the entire total disability is the responsibility of the employer under the “two-cause” rule. In Carrington v. Aquatic Co., a long-term employee suffered from preexisting kidney disease that did not affect his ability to work. In a work-related accident, he injured his arm and received comp benefits. He was cleared to return to light duty, which he did.

Shortly thereafter, his kidney condition deteriorated such that he was unable to work and filed for TD benefits, arguing the two-cause rule should apply. He died during the appeals process which led to the state Supreme Court. It upheld lower rulings that the sole cause of his total disability, was his kidney failure that was unrelated to his employment. The key question was which injury kept him from working at all – thus rendering him totally disabled. Further, the compensable arm injury did not contribute to his kidney deterioration.

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

Things you should know

Rating agency reports fifth year of comp profits but forewarns profits are not sustainable

According to Fitch Ratings Inc, the workers’ compensation market is on track for a fifth consecutive year of underwriting profits in 2019, despite recent weakening in market fundamentals. The industry’s statutory combined ratio fell to 86% in 2018, and has averaged 93% annually since 2015, according to the report. However, the report notes several factors that could result in a sudden deterioration in performance including an increase in claims frequency or severity, and new regulatory developments in key states, according to the statement.

NIOSH issues new banding guide for chemicals in the workplace

NIOSH has published a technical report intended to help control chemical exposures in the workplace. The NIOSH Occupational Exposure Banding Process for Chemical Risk Management details a strategy for managing the many chemical substances that don’t have an authoritative occupational exposure limit. Occupational exposure banding is a process that assigns each chemical to a category based on its toxicity and any negative health outcomes associated with exposure to it.

FMCSA seeks to delay two provisions in final rule on CMV driver minimum training

The Federal Motor Carrier Safety Administration is requesting delaying compliance of two provision, which were scheduled to go into effect Feb. 7, 2020. These include requiring training providers to upload certification information into FMCSA’s Training Provider Registry and a provision for state driver licensing agencies to “receive driver-specific [entry-level driver training] information.”

Comments are due Aug. 19.

Another court decision favors MAO right to sue under private cause of action provision

Medicare Advantage Organizations (MAOs) received a favorable ruling on a motion to dismiss the case, MSP Recovery Series, LLC v. Plymouth Rock, in Federal Court in Boston. Since 2012 no court has concluded that MAOs do not have at least some rights under the private cause of action provision.

Study finds adherence to evidenced-based medicine guidelines for lower back pain lowers comp costs

recent study in the Journal of Occupational and Environmental Medicine concluded there is a statistically significant trend in the relationship between adherence to ACOEM guidelines for the initial management of work-related lower back pain and decreasing claim costs. Medical and total costs trended lower by an average $352.90 and $586.20 per unit of compliance score respectively. No outlier cost claims were in the best guidelines compliance groups.

CMS proposed decision to cover acupuncture

The Centers for Medicare & Medicaid Services (CMS) issued a proposed decision to cover acupuncture for Medicare patients with chronic low back pain (cLBP) who are enrolled participants either in clinical trials sponsored by the National Institutes of Health (NIH) or in CMS-approved studies. Currently, acupuncture is not covered by Medicare. The goal of the proposed decision is to provide Medicare patients who suffer from cLBP with access to a nonpharmacologic treatment option and to determine the effectiveness.

NAHB offers resources on managing opioid misuse in residential construction

In response to the particularly heavy impact the opioid crisis is having on the construction industry, the National Association of Home Builders has introduced several free resources intended to help residential construction organizations combat the issue.

These include:

  • An executive training package, including a webinar and other downloadable materials, outlining why industry action is needed
  • Supervisor training packages on workplace interventions and preventing opioid misuse in the industry
  • Fact sheets on the risks associated with taking opioids, and identifying medical and nonmedical opioid
  • Resources on non-opioid alternatives to pain management
  • A state-by-state guide of locally available resources

Study identifies what professions have worst drivers

study of 1.6 million car insurance applications by Cambridge, Massachusetts-based Insurify Insurance Co., an auto insurance comparison website, found that bartenders, ticket sales representatives, and journalists had the most moving violations. The cause? These professions tend to work 55-60 hours per week and sometimes work weekends. In contrast, postmasters and music composers are the best.

Helping employees get more sleep improves productivity: review of research

Basic employer interventions such as educating workers about the importance of sleep and sharing strategies to improve it may result in better sleep habits, increased productivity, and reduced absenteeism, a recent review of research concludes. The studywas published in the April 15 issue of the Journal of Clinical Sleep Medicine.

New video for tower workers explores safe installation, maintenance of small cell antennas

new two-and-a-half-minute video from the National Association of Tower Erectors stresses hazard awareness for technicians who work with small cellular antenna towers on new or existing structures.

State News

California

  • The Workers’ Compensation Insurance Rating Bureau (WCIRB) released its 2019 State of the System report highlighting key metrics of the state’s workers’ compensation system.
  • The Division of Workers’ Compensation posted an order updating the Medical Treatment Utilization Schedule. Treating providers, qualified medical evaluators and agreed medical evaluators, and utilization review and independent medical review physicians can access the MTUS guidelines at no cost by registering for an account here.

Florida

  • The Division of Workers’ Compensation has finalized a rule that defines which injuries “shock the conscience,” as required by legislation passed more than a year ago. The eight injuries deemed to be shocking to the conscience are:
    • Decapitation (full or partial).
    • Degloving.
    • Enucleation.
    • Evisceration.
    • Exposure of the brain, heart, intestines, kidneys, liver or lungs.
    • Impalement.
    • Severance (full or partial).
    • Third-degree burn on 9% or more of the body.

    The Legislature will now be required to give final ratification because the rule is likely to cost municipalities more than $200,000.

Missouri

  • The maximum weekly benefit for temporary total disability, permanent total disability and death benefits rose to $981.65, effective July 1. Permanent partial disability rose to $514.20.

New York

  • Mandated comp coverage for farm laborers under the Farm Laborers Fair Labor Practices Act, which requires farm employers to provide workers compensation for laborers, institutes injury reporting requirements and offers laborers additional protections, takes effect Jan. 1, 2020.

Virginia

  • The Workers’ Compensation Commission released its 2018 Annual Report, which provides a summary of key initiatives, trends, and outcomes.

Wisconsin

  • Commissioner of Insurance approved an overall 8.8% rate decrease for businesses starting Oct. 1, the fourth consecutive year of decreases.


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

Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

In Holmes v. General Dynamics Mission Systems Inc., a U.S. District Judge in Virginia dismissed an employee’s claims alleging violations of the ADA after she was terminated for being unable to perform the essential functions of her job, specifically, wear required safety shoes. She worked at the manufacturing facility for 18 years and was given an exemption in 2003, based on a note from her doctor.

However, the company stopped exempting her in 2013 because an outside auditor found violations of the protective footwear policy and stated that future violations could jeopardize the company’s certifications. The company did research and present alternative footwear to her and when none were acceptable, she was placed on an excused absence and encouraged her to seek custom-made safety shoes, which the company would reimburse.

After more than two years of absence and no evidence that she pursued the custom-made shoes, she was terminated.

Employer’s failure to raise “regarded as” defense results in jury award to employee

In Robinson v. First State Community Action Agency, a manager told an employee she either had dyslexia or didn’t know what she was doing and placed her on a performance plan. She sought a medical opinion about dyslexia, which was not conclusive, and gave it to her manager who gave it to HR. The HR Director told her the evaluation did not have any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan and she then sought a reasonable accommodation. A few weeks later she was fired.

She sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation and a jury agreed. The employer appealed, arguing that the jury instructions didn’t reflect changes that the ADA Amendments Act in 2008. While the 3rd Circuit agreed that the jury instruction was made in error, and “after the 2008 amendments went into effect, an individual who demonstrates that she is ‘regarded as’ disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation,” the employer had waived the right to contest it because it had not opposed the use of the argument earlier.

The case is a harsh reminder of the importance of raising all possible defenses early in the litigation to preserve the rights on appeal.

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

In Ingram v. Six Flags Entertainment Corp., an appellate court declined to overturn a jury trial verdict that declared Six Flags was not negligent for the injuries suffered by two workers who were electrocuted while repairing a ride. Although one of the electricians thought he had deenergized the equipment at Magic Mountain, there was an arc flash explosion, which caused serious burns.

They sued the parent company, Six Flags, arguing it failed to provide appropriate personal protective equipment and made changes to its safety program after the incident. However, Six Flags has a policy that forbids working on energized electrical equipment, provides training on how to shut off power, and successfully argued to exclude its post-incident safety program changes from the trial.

Failure to return to light duty work nixes award of TPD – Florida

In MJM Electric Inc. v. Spencer, an appellate court reversed a judge of compensation claims’ decision in favor of an injured worker because the employer had offered suitable light duty work. The electrician was injured at work and saw an authorized physician, but never returned to work in spite of multiple messages from his employer that light-duty work that fell within his work restrictions was available.

After two weeks of no response, the company fired him for job abandonment. He argued he did not recognize the number and had no voice mails. The judge of compensation claims found he was not entitled to temporary partial disability benefits for the first two weeks after his accident, but he could receive disability benefits after his termination because the company failed to meet its burden of showing suitable employment opportunities. The appeals court reversed and remanded the case.

Tort suit against subcontractor can proceed – Florida

In Heredia v. John Beach & Associates, an appellate court ruled that a man working for a subcontractor can sue another subcontractor and an employee. The injured employee was working for QGS, a subcontractor doing roadwork for Lennar Homes LLC and was accidentally struck by a truck owned by another subcontractor, John Beach & Associates, that was doing surveying work.

Under the law, when a contractor sublets work to subcontractors, all employees of the contractor and subcontractors are considered employed in one and the same business and are protected by the exclusive remedy provision. However, the court found in this case, Lennar was not performing any work, was not subletting work, and therefore, was not a contractor. The case can proceed.

Average weekly wage should be based on actual earnings not pro-ration wage – Georgia

A school custodian worked a school year schedule, but had his wage spread out over a 12-month period. In Ware County Board of Education v. Taft, an appellate court ruled that his wages should be based on his contractual rate, not the lesser actual pro-rated amount he earned during the 13-weeks preceding his injury.

Supreme Court provides guidance on PTSD provisions – Minnesota

In Smith v. Carver County, the state Supreme Court reversed a decision by the state’s Workers’ Compensation Court of Appeals (“WCCA”), finding the 2013 PTSD statute does not require a compensation judge to conduct an independent assessment to verify that the diagnosis was in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM) before accepting the expert’s diagnosis.

The case involved a deputy sheriff who resigned after 10 years and was diagnosed with PTSD by a licensed psychologist. However, an independent psychological evaluator opined that he did not have PTSD, although he had adjustment disorder with anxiety. A WCJ found this opinion more persuasive and denied the claim. The WCCA overturned, finding this opinion did not address the PTSD criteria in the latest version of the DSM.

Nonetheless, the Supreme Court reversed noting the compensation judge’s legalistic analysis of the DSM-5 was not to become a substitute for the professional judgment of psychiatrists and psychologists and the judge did not err in finding the independent evaluation more persuasive.

High court rules no fault auto insurer must pay for injured driver’s excess chiropractic charges – Minnesota

In Rodriguez v. State Farm Mut. Auto. Ins. Co., an injured bus driver received 12 weeks of chiropractic treatments, the maximum allowed under the state’s workers’ comp law. She then sought treatment from another chiropractor and payment from her personal automobile insurance policy, which denied payment based on the workers comp payments.

The case made its way to the Supreme Court, which ruled the additional care fell outside of the comp statute because it was with a separate provider whose services had never been characterized as excessive.

Jury verdict of $74.1 million upheld in worker’s death – Missouri

The Ford Motor Co. must pay the widow of a truck driver who was struck by machinery while making a delivery at the Kansas City Assembly Plant ruled an appellate court in Ford v. Ford Motor Co. The driver, who had worked for the trucking company for less than two weeks, was delivering vehicle seats, which were removed by an L-shaped pair of conveyor lines. He entered the area between the conveyor belts to manually clear a jam during seat removal and stepped into a “pinch point” between the tables and was crushed.

The company appealed a jury verdict that assigned the company 95% comparative fault for his death and awarded his widow and son $38 million in compensatory damages, and $38 million for aggravating circumstances. The appeals court disagreed and upheld the award. The company plans to appeal to the state Supreme Court.

Right to cross-examine employer’s expert wrongfully denied – New York

In Matter of Ferguson v. Eallonardo Construction, an appellate court ruled that a worker was wrongfully denied the opportunity to cross-examine the insurance carrier’s medical consultant on how the permanent impairment rating of 40% was reached. While the counsel for the injured worker did not file a competing report, the court ruled that the right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report. The only requirement is that a request be made at a hearing, prior to the judge’s ruling on the merits.

Failure to complete application sufficient for denial – New York

In Matter of Jones v. Human Resources Administration, an appellate court ruled that an attorney’s failure to fill out every section of an application for administrative review was a proper basis for the Workers’ Compensation Board to deny it. While the worker received benefits for an work-related injury, she was later denied the request to add additional consequential injuries to her claim. There was a no information in the box for question 13 of the RB-89 form, which requested hearing dates, transcripts, etc.

Heart injury hours after accident compensable – North Carolina

In Holland v. Parrish Tire Co., a three-judge panel of the Court of Appeals reversed the Industrial Commission’s decision that a worker’s heart injury that occurred hours after he was hit in the chest with a tire was not compensable. While unloading tires for a delivery, he was hit in the chest by a tire that weighed between 100 and 200 pounds. The owner transported him to an urgent care center because he had turned gray and was uncharacteristically slow, where he was sent to an emergency room. There he was diagnosed with an aortic dissection and a collapsed lung and admitted to the intensive care unit.

He underwent surgery and was told he would have a work restriction of being unable to lift more than 40 pounds indefinitely, and was diagnosed with major neurocognitive disorder due to the open-heart surgery, adjustment disorder, and depression. Later, he was rated permanently disabled and unable to work by a treating physician and filed for workers’ comp, which was denied.

The appellate court found that the commission had not adequately considered physicians’ testimony that aortic dissections could be caused by trauma.

No comp for traveling salesman for car accident after celebration with coworkers – Pennsylvania

In Peters v. Workers Compensation Appeals Board (WCAB), a traveling salesperson drove past his house on his way to a happy hour with colleagues and was injured in a car accident when returning home. Although he argued that he was traveling home from a work-sponsored event in a work van, and that as a traveling employee, his accident should be compensable, a judge, the WCAB, and the Commonwealth Court disagreed. It found that the gathering was not furthering the interest of the employer, but rather was a social gathering. Further, while a traveling employee is presumed to be within the course and scope of employment when he is driving to or from work, he had abandoned his employment by driving past his house on his way to the happy hour with colleagues.

Failure to use an automated external defibrillator not breach of duty – Pennsylvania

In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling denying the guardian of a worker, who suffered a cardiac arrest and a subsequent brain injury at work, damages under the Federal Employers Liability Act (FELA). The guardian claimed the former employer was liable for the incident for not administering an automated external defibrillator (AED).

While the company had an AED within 100 yards of the incident, it did not use it and paramedics arrived within two minutes and used one. There was no evidence suggesting a heightened risk of cardiac events for employees or that it provide assistance in the form of an AED.

Continuing denial of opioids affirmed – Pennsylvania

In Jason Golembesky v. Workers’ Compensation Appeal Board (Worth & Co. Inc.), a manufacturing worker had been on high doses of opioid oxycodone since his injury in 2010. In 2016, the employer filed a utilization review petition, and the reviewing doctor opined that the opioid prescription was excessive. The worker filed a petition for review of the findings, arguing he had tried alternative methods of controlling the pain, which had not worked. The employer also presented evidence from an independent review doctor who noted the worker was taking massive dosages, essentially three times what is considered a high dose of morphine equivalent.

A WCJ and the WCAB found the opinions of the independent reviewers more credible than those of the worker’s providers.

More than ten years after injury, worker awarded benefits for right knee condition – Virginia

In Nanochemonics Holdings, LLC v. McKinney, a worker sustained a work-related left knee injury. More than ten years later, he filed a claim for a right knee condition. Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, an appellate court affirmed the award benefits, noting that the problem was caused, at least in part, by an altered gait brought about by his earlier left knee injury. While it acknowledged that the worker was morbidly obese, this did not amount to a sufficient break in causation.

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

OSHA watch

FY 2018 Enforcement summary released

OSHA conducted 32,023 total inspections in FY 2018, a number that has remained relatively stable over the past three fiscal years. For more information see the related article, Insights from OSHA’s recently released enforcement summary.

Comments on updating Lockout/Tagout standard due August 18

Comments on a possible update of the Control of Hazardous Energy (Lockout/Tagout) standard are due by Aug. 18. Emphasis is being placed on how employers have been using control circuit devices and how modernizing the standard might improve worker safety without additional burdens for employers. It wants to hear from employers about how their operations would be affected if OSHA staff interprets the “alternative measures that provide effective protection” requirement of the minor servicing exception to include use of the same reliable control circuits. For additional details and information on how to file comments.

New training programs available to help protect construction workers from fall hazards

Two Susan Harwood Training Grant Program recipients have developed free training programs to help protect construction workers from fall hazards. The University of Tennessee training program offers three modules on OSHA’s role in workplace safety, health and safety standards affecting construction workers, and preventing common types of falls at construction sites. The University of Florida training program uses software to present 360-degree panoramas of construction scenarios to test trainees’ skills at identifying fall hazards. The training software is available in English and Spanish.

Whistleblower website updated

The streamlined design highlights important information for employers and employees on more than 20 statutes enforced by the agency. The new whistleblower homepage utilizes video to showcase the covered industries, which include the railroad, airline, and securities industries.

Whistleblower action: Truck driver reinstated after refusing to drive in winter storm

A box truck driver was reinstated and will receive almost $200,000, including $100,000 in punitive damages, from Kentucky-based Freight Rite, Inc. that fired him after he refused to drive in bad weather. Inspectors determined the termination is a violation of the Surface Transportation Assistance Act (STAA). For more information.

Reminder: Hurricane preparedness and response

The Hurricane Preparedness and Response webpage provides information on creating evacuation plans and supply kits and reducing hazards for hurricane response and recovery work.

Cal/OSHA emergency wildfire smoke regulation takes effect

The emergency wildfire smoke regulation took effect July 29 after being approved by the state’s Office of Administrative Law.

Effective through January 28, 2020 with two possible 90-day extensions, the regulation applies to workplaces where the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Recent fines and awards

California

  • After a worker’s hand was crushed while cleaning a rotating auger, food processing company, SFFI Company, Inc., faces six citations and $79,245 in penalties related to lockout/tagout and training.
  • Resource Environmental, Inc., faces $49,500 in penalties after an unstable, unsupported wall collapsed during a building demolition, resulting in fatal injuries to a worker.
  • Gladiator Rooter & Plumbing was working in a crawl space replacing underground sewer pipes for airline caterer Gate Gourmet, Inc. at the San Francisco International Airport when two plumbers were poisoned by carbon monoxide, one requiring hospitalization. Gladiator Rooter & Plumbing was fined $50,850 for eight violations and Gate Gourmet faces $18,000 in proposed penalties for one violation.
  • In Secretary of Labor v. Bergelectric Corp., an OSHRC judge vacated three citations levied against the electric company, based in Carlsbad, after finding that the company did have an adequate fall protection program in place.

Florida

  • Jimmie Crowder Excavating and Land Clearing Inc. faces $81,833 in penalties for exposing employees to amputation and other safety hazards at the company’s facility in Tallahassee. An employee suffered an arm amputation after it was caught in a conveyor belt that started unexpectedly as an employee removed material.
  • The Jacksonville Zoological Society Inc. was cited for exposing employees to workplace safety hazards at the Jacksonville zoo after a zookeeper was injured by a rhinoceros. The animal park faces $14,661 in proposed penalties.
  • Tampa-based Edwin Taylor Corp., failed to provide fall protection on several occasions, one resulting in the death of a worker who fell 22 feet while building homes must pay a $101,399 fine, an administrative law judge with the OSHRC ruled.

Georgia

  • Transdev Services Inc. was cited for exposing employees at a Norcross worksite to safety and health hazards. The company faces $188,714 in penalties for obstructing access to emergency eyewash and shower stations, failing to label hazardous chemicals, provide training on hazardous chemicals and incipient stage firefighting and fire extinguisher use, and train and evaluate forklift operators properly. The company had been cited previously for similar violations.
  • Woodgrain Millwork Co., operating as Woodgrain Distribution Inc, was cited for exposing employees to chemical and struck-by hazards at the company’s distribution facility in Lawrenceville. The company faces $125,466 in penalties.
  • Norcross-based Fama Construction must pay nearly $200,000 in penalties because it was the controlling employer on a worksite and found to have repeat violations according to an OSHRC ruling.

Illinois

  • Inspected after an employee was electrocuted, Hudapack Metal Treating of Illinois Inc, based in Glendale Heights, was cited for 21 serious health and safety violations related to electrical safety and PPE. The company faces penalties of $181,662.

Missouri

  • R.V. Wagner Inc, based in Affton, was cited for exposing employees to trench engulfment hazards as they installed concrete storm water pipes in St. Louis. The company received two willful violations for failing to use a trench box or other trench protection techniques in an excavation greater than five feet in depth and to provide a safe means to exit the excavation and faces proposed penalties of $212,158.

New York

  • Northridge Construction Corp. was cited for willful and serious violations of workplace safety standards at the company’s headquarters in East Patchogue. The company faces $224,620 in penalties following the death of an employee when a structure collapsed during installation of roof panels on a shed. The penalties are being contested.
  • U.S. Nonwoven Corp., a home and personal care fabric product manufacturer, was cited for repeat and serious safety violations after an employee suffered a fractured hand at the plant in Hauppauge. The company faces $287,212 in penalties.

North Carolina

  • Burlington-based Conservators Center Inc. received three serious citations totaling $3,000, after an intern was killed by a lion during a routine cleaning,

Pennsylvania

  • In Francis Palo Inc. v. Secretary of Labor, the 3rd U.S. Circuit Court of Appeals in Philadelphia declined to review the OSHRC decision finding that substantial evidence supported an administrative law judge’s ruling that due diligence by the company would have prevented the collapse that injured two workers.

Wisconsin

  • Following a fatality, Pukall Lumber Company Inc, a lumber mill in Arbor Vitae, was cited for exposing employees to multiple safety hazards. The company faces penalties of $348,467 for 15 violations, including two willful citations for failing to implement energy control procedures, and ensure the conveyer had adequate guarding to prevent employees from coming in contact with the moving parts.

For additional information.

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

Legal Corner

Workers’ Compensation 

WCAB does not have authority to overturn award of medically necessary housekeeping services – California

When housekeeping services are requested by a physician and are reasonably required for an injured worker, they qualify as medical treatment. As such, the Court of Appeals for the 2nd District ruled that if a physician makes a request for a medical treatment, an employer cannot deny it unless a utilization reviewer determines that it is medically unnecessary.

In Allied Signal Aerospace, Constitution State Service Company v. Workers’ Compensation Appeals Board and Maxine Wiggs, the injured worker was receiving housekeeping services twice a month, but the physician requested a change to every week. The company submitted the request to utilization review. The reviewer found the more frequent schedule was not medically necessary. However, the WCAB supported a judge’s ruling to submit the records to a registered nurse who had made an earlier assessment of need for review.

The 2nd DCA vacated the WCAB’s ruling noting that since there was no stipulation to displace the provision of housekeeping from the UR-IMR process, the WCAB had no jurisdiction to review the medical necessity and reasonableness of service.

Exclusive remedy bars personal injury claim by firefighter kicked in the groin by supervisor – California

In Tibbett v. Los Angeles County Fire Department an appellate court affirmed a jury’s ruling that a firefighter’s unintentional injuries were barred by the exclusive remedy of workers’ compensation. The incident occurred when the firefighter complained to a supervisor about how a situation with a hostile victim was handled. The fire captain said he was showing a maneuver to keep volatile patients away by obstructing their vision, but the firefighter moved and he kicked him in the groin with a steel-toed shoe.

The firefighter had emergency surgery to remove his left testicle and underwent more surgeries that rendered him sterile. The court agreed with the jury, finding the fire captain did not intend to harm the firefighter; therefore, workers’ comp was the exclusive remedy.

Challenge to the presumption of correction for the opinions of EMAs rejected – Florida

In De Jesus Abreu v. Riverland Elementary School, the 1st District Court of Appeal rejected a constitutional challenge to the statutory presumption of correctness for the opinions of expert medical advisers (EMA). The employee suffered a compensable injury to her shoulder and an arthroscopic shoulder surgery was performed to address a partial rotator cuff tear.

While the physician deemed she had reached MMI, she continued to report pain and she sought care from an unauthorized orthopedic physician who recommended further surgery. The company authorized another orthopedist, who did not recommend further surgery. However, the employee obtained an IME from a doctor who thought surgery was appropriate.

Because of the conflicting opinions, a JCC appointed an EMA who opined that no further surgery was recommended or medically necessary. The JCC denied surgery because state statutes provide that the opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary.

The employee appealed, arguing that the presumption improperly usurps the rulemaking authority of the state Supreme Court and that the presumption interferes with the executive branch’s ability to fairly adjudicate workers’ compensation claims. The court disagreed.

Restaurant manager shot in off-hours robbery can receive benefits – Georgia

In Kil v. Legend Brothers, the Court of Appeals overturned a denial of benefits to a restaurant manager who was shot as he was arriving home from work with the day’s receipts, which he regularly reviewed when he got home. The worker lived with the restaurant owner and his coworker. When he arrived home with his coworker, they were attacked by three men who demanded money. When the attackers realized the worker had a gun, they fled, but shot him in the forearm and he has not been able to work.

Both an administrative law judge and later the state Board of Workers’ Compensation awarded him comp benefits, ruling that his injury arose within the scope and course of employment. However, a state superior court reversed, finding that he was not at work at the time of the armed robbery and shooting-that he was home and that he was shot because he had a gun, which “had nothing to do with performing his duties for his employer.”

The Court of Appeals disagreed, noting one of the worker’s key job responsibilities was to spend around an hour every day going over the restaurant’s daily sales, receipts, accounts and inventory and that he was continuing his duties as manager.

Insurer must pay for injuries despite misinformation in policy – Georgia

In Grange Mutual Casualty Co. v. Bennett, several mistakes were made when an insurance agent took the company’s business information from its policy with a former insurer. She misclassified the company that was a construction company involved in greenhouse repair and maintenance as providing janitorial services and erroneously noted that employees did not travel out of state and that workers did not perform work above 15 feet. While the owner signed the policy, there was a dispute whether it was complete at the time.

When an injury that occurred out of state was denied, the company told the agent the policy had to be changed because most of its business was out of state. When the insurer learned more about the business operations it said it would not have issued the policy if the application had correctly stated that the company operated in 30 states because Grange Mutual was not licensed to issue policies in all of those states. It sent a cancellation notice but gave the company 90 days to find an alternative.

In less than 90 days, another worker was injured out of state, suffering extensive injuries in a truck accident. An administrative judge held that Grange Mutual’s policy covered the employee’s injuries and that by agreeing to pay for workers’ comp claims under the laws of Georgia, the Georgia-based company’s workers were covered even when out-of-state. Further, an appellate court held that Grange Mutual waived its void policy defense when, after discovering the inaccurate information on the application, it informed the company that its coverage would continue for 90 days. The court said that if the insurer “believed that the policy was void based on fraud, it should have immediately rescinded it.”

Borrowing employer’s immunity from tort liability not dependent on insurance – Illinois

In Holten v. Syncreon North America, an appellate court ruled that a temporary staffing service’s employee could not pursue a negligence suit against his borrowing employer for work injuries. The worker received comp benefits from the staffing agency for injuries resulting from a forklift accident, but filed suit against the borrowing employer, asserting its negligence had led to his injuries.

The state Workers’ Compensation Act provides that the lending and borrowing employers are jointly and severally liable for workers’ compensation benefits, but both do not have to provide the insurance. As long as one of the employers pays benefits, both have civil immunity. The immunity springs from the borrowed-employee relationship itself.

Employee can sue Canada – Massachusetts

Federal law immunizing foreign governments from liability does not protect Canada from being sued as an uninsured employer under the state’s workers’ compensation statute for injuries suffered by a consulate employee in Boston, the 1st U.S. Circuit Court of Appeals ruled in a 2-1 decision. In Merlini v. Canada, the Court found that the Foreign Sovereign Immunities Act provides an exception to immunity for a foreign state that engages in a “commercial activity.” The court said Canada entered into a contract for commercial services by hiring Merlini and failed to carry workers’ comp insurance as required of commercial employers in the state.

Worker who resigned after injury can collect unemployment – Minnesota

In Interplastic Corp. v. Rausch, a long-time employee injured his back and was transitioned to a lower job but received the same wage and accompanying pay raises over the next three years. He was then notified his wage was being reduced to align with the position and he was ineligible for future raises. About the same time, the workers’ compensation claim was settled and he received a $25,000 payout and agreed to “voluntarily terminate his employment.”

When he applied for unemployment benefits, he was denied because he had voluntarily quit. However, a three-judge appellate court panel affirmed an unemployment law judge’s decision that a substantial pay reduction, the lack of future earnings potential, and the claim settlement allowed the worker to fall under the state’s statutory exception for unemployment eligibility.

Worker’s manufacture of meth does not forfeit comp benefits – New York

In Robert Stone v. Saulsbury/Federal Signa et al., an appellate court ruled that a worker’s conviction for manufacturing methamphetamine did not forfeit his entitlement to benefits for two industrial injuries. The court upheld the WCB ruling that the man who had been collecting indemnity benefits for a compensable injury prior to his conviction and incarceration did not violate state workers’ compensation laws when he became involved in the production of illegal drugs.

The insurer contended that the manufacture of methamphetamine constituted “work”. The court disagreed, “substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration.”

Denial of occupational disease does not prevent new theory of accidental injury – New York

In Matter of Connolly v. Covanta Energy Corp., an appellate court reversed the state Workers’ Compensation Board’s finding that a worker suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings. However, this would not prevent the worker from arguing an accidental injury claim on essentially the same facts. After remand, the Board was free to consider the new theory for the claim.

Elimination of labor attachment requirement for PPD not retroactive – New York

In Matter of the Claim of Scott v. Visiting Nurses Home Care, a worker who was classified as having a permanent partial disability, was found to have voluntarily withdrawn from the labor market and benefits were suspended twenty-two years after her injury. In 2017, the law was amended to provide that proving attachment to the labor market was no longer necessary for permanent partial disability compensation.

After the amendment took effect, she filed a request for reinstatement of benefits. A law judge, the Board, and the Appellate Division’s 3rd Department all agreed that the amendment did not apply retroactively.

Failure to mention side business not fraud – New York

In Matter of Permenter v. WRS Envtl. Servs. Inc., a truck driver’s failure to disclose his involvement in an online and retail flower business was not the sort of misrepresentation that should disqualify him from receiving workers’ compensation benefits according to an appellate court ruling. The employee had freely admitted that he owned a company engaged in the flower business, but the employee did not consider it work because it was not profitable.

Termination of benefits OK for a minor physical deformity, but no physical impairment – Pennsylvania

In Paolini v. Delaware County Memorial Hospital, the Workers’ Compensation Appeals Board held that the workers’ compensation judge (WCJ) did not err in awarding benefits to a nurse who sustained physical injuries and post-traumatic stress disorder as a result of a dog bite while performing a home visit. Her doctor provided unequivocal medical testimony that she had sustained PTSD as a result of her work injury, even though her Facebook page showed her swimming and parasailing.

However, the board reversed the WCJ’s denial of the employer’s termination petition, as the employer’s examining physician found that although the nurse had slight discoloration and subjective, mild numbness, she had fully recovered from the physical dog bite.

Injuries incurred on railroad bridge not covered by longshore comp – Virginia

In Muhammad v. Norfolk Southern Railway Co., a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed and remanded a district court’s holding that the worker’s negligence claim was barred by the exclusive remedy under the Longshore and Harbor Workers’ Compensation Act (LHWCA). While working on a bridge that crosses a navigable river, a portion of the walkway collapsed beneath the employee and he sustained serious injuries.

He filed suit against the railway, asserting a negligence claim under the Federal Employers Liability Act, but the company argued the claim was subject to the LHWCA. The district court agreed, finding repairing and rebuilding the bridge was an “essential and integral element” of the maritime traffic flowing under the bridge, therefore, his work constituted as engaging in maritime employment.

Upon appeal, the 4th U.S. Circuit Court of Appeals reversed and remanded the district court’s decision. It noted that the LHWCA requires employee work “upon navigable waters” and that a bridge would not be covered by the statute.

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

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 
www.StopBeingFrustrated.com

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