Legal Corner

Workers’ Compensation
Contractor cannot be sued for death of subcontractor’s employee – California

In Sherry Horne et al. v. Ahern Rentals, Inc., an employee of 24-Hour Tire Service Inc. was crushed to death while changing a tire on a forklift. His family received workers’ comp death benefits and sued Ahern Rentals, alleging that it had contributed to the collapse of the forklift by failing to provide a stable and level surface, allowing the tire change to proceed with the forklift’s boom raised, and failure to train employees.

However, an appeals court noted that to be liable the contractor had to actively direct the contractor or contractor’s employee to do the work in a particular way. It noted that “passively permitting an unsafe condition does not amount to actively contributing to how the job is done.”

85-year-old precedent upended by Supreme Court – Georgia

In Frett v. State Farm Employee Workers’ Compensation, an insurance claims associate slipped and fell in the break room while taking her mandatory lunch break. An appeals court had found that the injury was not compensable because it took place on her lunch break, and therefore, did not arise out of her employment, but out of a purely personal matter. This followed the reasoning of a 1935 decision regarding “off-the-clock” injuries.

However, the Supreme Court found that she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. This activity, being reasonably necessary to sustain her comfort at work was, “incidental to her employment and is not beyond the scope of compensability under the Act.” Acknowledging the similarity to the 1935 “Farr” case, the court said the reasoning of Farr was unsound, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.”

One time change of physician rule bumped to Supreme Court – Florida

The First District Court of Appeal, in City of Bartow v. Flores, ruled that under statute 440.13(2)(f), which allows for a one-time change of physician, it isn’t enough for an employer/carrier (E/C) to provide the name of the alternate physician within five days as specified in the statute. The court held, that it must supply access to the physician by setting up an appointment and inform the injured worker of that date.

In this case, the worker was not notified of an appointment for 56 days. Therefore, the court determined he could be treated by the physician of his choice.

Noting the importance of this decision, the appellate court certified to the Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician for treatment, or whether the E/C must actually provide the injured worker an appointment date with the authorized alternate physician.

Judge rules on class-action lawsuit of McDonald’s employees related to COVID-19 – Illinois

In Massey v. McDonald’s Corp, Chicago-area McDonald’s workers sought to require the company and the franchises named in the complaint to comply with health guidance and provide proper protective equipment for workers. A judge found that two of the franchises named in the suit failed to comply with the Governor’s Executive Order on mask requirements and failed to properly train workers on social distancing.

Although the judge found the franchisees provided sufficient masks, gloves and sanitizer to workers and adequately monitored virus cases and symptoms among employees, she ordered the store owners to enforce all mask-wearing policies when employees are not six feet apart and to train workers on social distancing.

Out-of-state worker cannot file tort suit in Missouri – Missouri

In Hill v. Freedman, an employee of the University of Kansas School of Law was riding with her supervisor to a work-related event in Missouri. During the drive an argument ensued and the supervisor alleged slammed the vehicle into a concrete barrier when he parked the car. She received workers comp benefits for her injuries through the Kansas system.

A few years later she sued the supervisor in a Missouri state court. The court of appeals noted Missouri follows the law of the state where a worker has been compensated, so Kansas law governs all the issues related to her injury. Under Kansas law, a worker who recovers benefits for an on-the-job injury from an employer cannot maintain a civil action for damages against a fellow employee.

Attorney fee awards clarified – Nebraska

In Sellers v. Reefer Systems, Inc., the Supreme Court ruled that an appellate decision erred in denying attorney fees to an injured worker because the affidavit did not provide details of the fee agreement. State statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.

The court determined that reasonable attorney fees do not depend on the terms of the fee agreement, but on the extent and value of the services provided. In this case, the affidavit contained sufficient justification to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.

Son’s death does not meet exception of workers compensation – New York

In Smith v. Park, a 14-year-old boy who was working illegally died while operating a skid steer. The farm accepted the injury claim and was directed by the workers compensation board to pay increased death benefits as a result of the illegal employment. The mother filed a lawsuit against the farm claiming the owner engaged in criminal conduct that was related to her son’s death. The court found that although the owner may have been negligent in his supervision, there was no evidence that he acted out of “a willful intent to harm.”

Reckless driving not enough to nix claim – New York

In McGee v. Johnson Equip. Sales & Serv., a truck driver was injured in a rollover crash as she exited the highway at a speed of 67 mph in a 35-mph speed limit zone. The carrier and employer contented that she willfully intended to injure herself. It also contended that there was cocaine in her system, but there was no evidence of the level of cocaine or when it was ingested.

While the court noted that benefits will not be awarded for deliberate injuries, there is a presumption that a worker is entitled to benefits. It can be overcome by substantial evidence, but the employer did not meet the burden of proof.

Decision to be stay-at-home Dad nixes benefits – Pennsylvania

In Respironics v. Workers’ Comp. Appeal Bd.(Mika), the Commonwealth Court upheld a WCJ ruling that had been reversed by the WCAB suspending the employee’s wage loss benefits when he decided to stay at home and care for his children. He resigned from his modified duty position and the employer argued he voluntarily left the workforce.

The worker needed to show that his loss of earning power was due to his injury and not his personal decision to remain out of work. However, he acknowledged that his decision was in part a financial one – his wife had greater earning power and child care expenses could be avoided. The court found that his testimony was enough to establish he had left the job market and benefits had to be suspended after that date.

Irritable bowel syndrome compensable – Virginia

In an unpublished opinion, Farrish of Fairfax and VADA Group Self-Insurance Association v. Faszcza, the Court of Appeals unanimously affirmed a Workers Compensation Commission decision granting workers compensation benefits to a worker who contended he developed Crohn’s colitis, a type of inflammatory bowel disease (“IBD”), as a result of taking medications prescribed for a work-related foot infection. He suffered from diabetic neuropathy and, at the time of his injury, did not realize he had stepped on an automotive fastener and injured his foot.

His injury became infected and required prolonged antibiotic use, which according to a physician, contributed to his IBD. An appellate court affirmed the Commission’s decision of compensability, noting that there was credible evidence supporting the assertion that the IBD was a result of the puncture wound.

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

Controlling workers comp costs: insights from five studies

Study: 2020 workplace safety index – Liberty Mutual Holding Co. Inc.

Findings: Each year this study researches the top 10 causes of the most serious workplace injuries, those that cause employees to miss work for more than five days, and ranks the causes by their direct cost to employers, based on medical and lost-wage expense. Further, it drills down this data for eight specific industries: construction, health care and social assistance, manufacturing, professional services, retail, transportation and warehousing, hospitality and leisure, and wholesale.

Overexertion from handling objects accounted for nearly a quarter of all workplace injuries and cost employers $13.98 billion, according to the index. Falls on the same level accounted for 18% of injuries at a cost of $10.84 billion, and struck-by injuries from objects or equipment made up 10% of injuries, costing $6.12 billion.

Takeaway: This helps employers understand the top risks in the workplace to better allocate safety resources.

 

Study: Top 10 Most Dangerous Jobs of 2020 – EHS Today

Findings: This list of the top ten most dangerous jobs is based on the fatal work injury rate, which is calculated per 100,000 full-time equivalent workers. Loggers were the number one most dangerous profession followed by fishers and related fishing workers.

Takeaway: Rather than looking at the total number of workplace deaths, this study offers a closer look at exactly how often a worker dies while employed in a specific industry. It enables employers to know when the chances of a fatality are high.

 

Study: Motor Vehicle Accidents in Workers Compensation – National Council on Compensation Insurance (NCCI)

Findings: From 2011 to 2016, the frequency of all workers compensation claims decreased by 20.1 percent while claims caused by motor vehicle accidents increased by 4.9 percent. Motor vehicle accident lost-time claims continue to cost over 80% more than the average lost-time claim because such claims tend to involve severe injuries to such body parts as head, neck, and spine. The study points to the rapid expansion of smartphone use as a possible cause.

Takeaway: An effective and consistently implemented distracted driving policy is critical for any business with employees who drive as part of their job.

 

Study: Comparing Physician Services in Workers Compensation and Group Health – NCCI

Findings: Injuries cost more, much more for some conditions, when they’re covered by workers’ compensation rather than group health insurance. Overall, comp costs are about 177% of group health costs. The costs for treatment are only slightly higher than group, but the utilization (number of treatments) is significantly higher.

Takeaway: The author suggests, “Some workers’ compensation claimants and claimant attorneys may find an incentive to seek additional medical care to support wage replacement benefits over a longer healing period or to negotiate a better settlement.” Partnering with an occupation medicine provider can help control the quantity and efficiency of medical services.

 

Study: Biopsychosocial Approach to Identify and Treat At-Risk Injured Workers – One Call Care Management Inc.

Findings: A small percentage of claims (five percent) account for a disproportionate percentage (25 percent) of the costs of physical therapy and rehabilitation. In fact, the average cost associated with that top five percent is more than five times the average cost. These cases are often not identified as problematic until after a treatment plan exceeded the initial guidelines. Predictive analytics can help identify at-risk workers early in the process and lead to an intervention plan that improves outcomes.

Takeaway: Share all you legally can about an injured worker’s type of work and medical history that can help flag at-risk cases.

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

OSHA PPE requirements and COVID-19

COVID-19 has not changed an employer’s responsibilities nor the primary tenets of OSHA’s PPE Standard. Employers must begin by conducting a hazard assessment in accordance with the PPE standard (29 CFR 1910.132) to determine the PPE requirements for their unique work site. PPE should be treated as the “last line of defense” in the Hierarchy of Controls. Since elimination or replacing the hazard is unfeasible, the first line of defense is engineering controls. These are mechanical methods of separating an employee from the exposure to COVID-19, such as improved air filtration systems, increasing ventilation rates, or installing physical barriers, such as clear plastic sneeze guards.

The second line of defense is administrative controls, which include focusing on changing human behavior to reduce exposure to a hazard. Examples include asking sick employees to stay home, minimizing contact with virtual meetings, telework, making it easier for workers to stay six feet apart from each other, staggered shifts, and training workers on COVID-19 risk factors and protective behaviors. It also includes providing the resources for safe work practices such as face coverings, no-touch trash cans, hand soap, alcohol-based hand sanitizers, disinfectants, and disposable towels for cleaning work surfaces.

After considering engineering and administrative controls as well as safe work practices, employers must determine if PPE (such as gloves, gowns, surgical masks, and face shields) is necessary for employees to work safely.

In its recent Guidance on Returning to Work, OSHA reminds employers to reduce the need for PPE in light of potential equipment shortages. “If PPE is necessary to protect workers from exposure to SARS-CoV-2 during particular work tasks when other controls are insufficient or infeasible, or in the process of being implemented, employers should either consider delaying those work tasks until the risk of SARS-CoV-2 exposure subsides or utilize alternative means to accomplish business needs and provide goods and services to customers. If PPE is needed, but not available, and employers cannot identify alternative means to accomplish business needs safely, the work tasks must be discontinued.”

Special considerations related to COVID-19:

  • If temperature screening of employees and/or visitors is part of your safety program, be sure the temperature taker is trained and protected from exposure with the proper PPE.
  • Cloth face coverings are not PPE. However, they are intended to reduce the spread of potentially infectious respiratory droplets from the wearer to others. Since they are not considered PPE the employer doesn’t have to pay for them, however, it is a smart move and reassuring message to employees. OSHA has taken the position that the General Duty Clause, Section 5(a)(1), may require employers to provide such masks as they are a feasible means of abatement in a control plan. Moreover, some state and/or local governments are not only requiring employees to wear face coverings at work but are also requiring employers to provide the cloth masks.

    For more information, review OSHA’s recent Q & A on face coverings.

  • When employers require employees to wear masks, there should be specific written regulations about when they must be worn, how to care for them, what medical or other protected reasons are valid exceptions, and what are the consequences if employees decline to wear them and do not meet the exception criteria. Training also is a good idea so employees can understand they do not substitute for social distancing or other administrative controls.
  • Employers must also be aware of situations where mask wearing can make it harder to breathe and do not in themselves create a hazard. For example, the California Department of Industrial Relations, in issuing its annual summer notice to employers on heat illness prevention noted, “Employers should be aware that wearing face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Workers should have face coverings at all times, but they should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained.”
  • N95 masks are considered respirators and if required in the workplace are subject to significant regulatory obligations under 1910.14. However, if an employee brings their own N95 or similar filtering facemask, they should be allowed to voluntarily wear them. The only regulatory burden is to provide the employee Appendix D of 1910.134. It is recommended that other types of respirators such as half-and-full-face, tight-fitting respirators, and PAPR’s be prohibited.
  • In March and April, OSHA issued temporary enforcement memoranda on relaxing respiratory protection enforcement.
  • Some employers have opted to make gloves available to workers, particularly those in work settings where employees are frequently touching the same surfaces or objects. Gloves should cover the entire hand, up to the wrist and employees need to be instructed on the proper way to remove clothes to ensure that it does not cause contamination.

What type of PPE is best for your workplace?

OSHA’s Guidance on Preparing Workplaces for COVID-19 identifies PPE requirements based on four risk categories of worker exposure to COVID-19. Workers in the very high-risk exposure level, such as healthcare, laboratory, and morgue workers are likely to need to wear gloves, a gown, a face shield or goggles and either a face mask or a respirator. Workers who interact with known or suspected COVID-19 patients should wear a respirator. The same PPE use is recommended for workers in the high exposure risk category, including healthcare delivery and support staff, medical transport workers, and mortuary worker.

The moderate exposure risk category includes those that require frequent and/or close contact with the general public in areas with community transmission of COVID-19, such as teachers, retail outlets, restaurants, and other public businesses. OSHA recommends that workers in this category wear some combination of gloves, a mask, gown and/or a face shield or goggles based on the level of exposure. For those in the low exposure risk category, such as teleworkers, OSHA does not recommend PPE.

OSHA has also published guidance for many specific industries that offers recommendations for engineering and administrative controls as well as PPE. The PPE Safety and Health Topics page provides additional information about PPE selection, provision, use, and other related topics.

Takeaway:

Employers can help protect themselves from OSHA fines and enhance their return-to-work protocols by:

  • Updating their Injury and Illness Prevention Program to align with Fed and State OSHA guidance and any specific industry guidance.
  • Implementing the generally applicable infection prevention control measures identified above.
  • Maintaining any records on safety and health measures implemented.
  • Documenting all training provided to employees.
  • Recognize that new guidance is being issued at the federal and state level almost daily and stay up to date.

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

Early data guides employers on three key workers’ comp issues and COVID-19

Background: Divergent pressures on premiums

There’s been much speculation that workers’ comp will drive significant losses in the property/casualty industry as a result of COVID-19. On the one hand, there is the explosion of presumption laws that discard the basic tenet of workers’ comp that employees must prove they were exposed to the virus during the course of their employment and on the other hand, there are plummeting premiums driven by business closures and dramatic declines in payrolls.

In June, Arkansas, Illinois, and Michigan joined 13 other states in extending COVID-19 presumptive coverage and 12 other states are considering new laws or executive orders. The laws vary significantly, covering different groups of workers and some are rebuttable while others are conclusive. Some are retroactive, while others go into effect in conjunction with the order or law. Employers should keep up-to-date with these rules as they continue to evolve. The National Council on Compensation Insurance (NCCI) has a helpful tracker.

How this impacts premium will also depend on the state Rating Bureau’s position on including or excluding COVID-10 workers’ compensation claims on the experience mod. To date, the following states have adopted rules that exclude COVID-19 claims from the experience mod: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee,Vermont, Virginia, West Virginia, and Wisconsin.

Also, the costs of many existing claims are rising. The restrictions on nonemergency medical care have meant longer recovery periods and delayed surgeries for injured employees. Delays in adjudication have also extended the life of claims.

Countering this upward pressure on premiums is the dramatic decline in payrolls from furloughs, layoffs, reclassifications, and exclusions of money paid to employees who are not working. PPP dollars ran out at the end of June and employers who had to keep workers on the payroll to qualify, won’t have to keep them “employed.”

According to CalMatters, only 1,098 workers comp claims were filed in California in May, compared with more than 50,000 in January. Although some states have urged insurers to refund premiums, similar to what was done for auto insurance, reflecting businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic, California became the first state to pass regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance. This emergency regulation is effective July 1, applicable to all employers in the state, retroactive to the state’s March 19 stay-at-home order and expires 60 days after the order is lifted. The amount of refund has not been calculated.

While it’s clear that these trends dramatically alter the workers’ comp landscape, uncertainty abounds and it’s too early to determine the overall impact. However, early claims data shed light on what’s occurring now.

COVID-19 claims

In Florida, the Division of Workers’ Compensation reported that there were 3,807 indemnity virus-related claims filed as of May 31. About 45% (1,718) of the claims were denied. Health care workers and those working in protective services accounted for 83.3% of the claims. About 55% of the claims from protective service workers were denied and 30% for health care workers. Service industry workers represented 9.1% of claims, office workers 6.1%, and airline workers 1.5%.

While the data did not include medical-only claims, experts have said that most coronavirus claims involve time off from work. The claims amounted to more than $3.4 million in benefits paid so far, or about 3% of the total amount of comp benefits paid for all types of claims from January through May.

Florida has a limited presumption for frontline state employees including first responders, corrections officers, child safety investigators, members of the Florida National Guard, and others who are required to contact people infected with COVID-19.

In Ohio, a monopolistic state but one without a presumption rule, some 23% of claims were denied by the state-run comp program, and 35% of COVID claims were denied by self-insurers.

In Colorado, where a presumption law was introduced in the Senate on June 2, the state’s largest workers’ comp insurer, Pinnacol Assurance, reported to the Colorado Sun that as of mid-May, it had received nearly 1,000 coronavirus-related claims. “But it said the majority of those – 60% – were filed out of an abundance of caution and were dismissed after it was later determined that the worker did not contract COVID-19.”

Of the roughly 400 claims remaining, Pinnacol said it has agreed to pay out on the majority of them, with the average claim amount running around $13,000, The majority of claims has come from first responders and healthcare workers.

According to the article, a spokesperson for Pinnacol said that if the presumption for first responders, health care workers, food-processing workers, and grocery store workers who test positive for COVID-19 passes, there could be a 27 percent increase in workers’ compensation premiums for employers in those industries. If the presumption just applies to first responders and health care workers, the premiums in those industries would triple.

The state has received 1,425 claims, about 60% have been denied by employers and about 27% approved by employers. The remainder are still being processed and investigated. The claims submitted include six for worker deaths; one approved and five remain under investigation.

In California, more than 5,000 COVID-19 related claims were filed from January to May, according to CalMatters. More than 1,000 were denied, but that was before the Governor signed an Executive Order extending protections for essential workers infected on the job on or after March 19.

According to a report by the California Workers’ Compensation Institute that examined over 1,000 claims filed as of April 30, 35% were denied, 28% accepted, and the remainder under investigation. The primary reason for denial was negative results on COVID-19 tests (70%). Lack of exposure at work accounted for 15% of denials and other reasons included refusal to take a test, working from home, and lack of symptoms. About 41 percent of workers’ comp claims were made by health workers, with another 32 percent by first responders including police and firefighters.

In the blog, Managed Care Matters, Joe Paduda of Health Strategy Associates reports that 35 workers’ comp insurers, state funds, TPAs, and service providers and large self-insured/self-administered employers were surveyed on the impact of COVID-19 claims. Payers have received about 33,000 COVID-19 claims to date and accepted just over 20% of all claims filed. The most common reasons for denial are a lack of a diagnosis, no symptoms, and/or a negative test for COVID-19.

The good news is that only a few have been very expensive claims (>$200,000) involving ICU and ventilator care.

The survey also reported on the “non-COVID” effects:

  • a drop of 25% to 50% in new injury claims since the outbreak
  • slower return to work due to an inability or unwillingness to access care and/or adjudication processes
  • respondents’ estimate that 2020 will end with a 20% decrease in the total number of claims

Of course, the impact will vary by industry with disproportionate COVID-19 claims in public entities and healthcare, and small businesses, retail, hospitality, and travel hardest hit by declining payrolls.

Takeaway

It is premature to make predictions bases on this data, particularly since much comes from the early months when there was a shortage of diagnostic tests. However, it does provide guidance on how employers should proceed when faced with a COVID-19 claim.

  • Understand the state’s position on presumption.
  • Know what information the insurance company wants to process the claim and how to identify it as a COVID-19 claim. Share any information about the job/employee that may relate to a perceived lower or higher risk of exposure from the workplace.
  • Be proactive. Find out when the symptoms began and if the diagnosis has been confirmed. Determine if the worker had contact with a person known to be infected with COVID-19 and when and where that contact occurred. Determine if immediate family members are currently showing similar symptoms or recently traveled to any high-risk areas.
  • Ask what other employees the worker may have had close contact with recently and begin contact tracing.

Substance abuse and mental health issues surge

The data indicates that employers can face a surge in addiction, stress, depression, and mental health issues as employees return to work. Isolation, uncertain job security, family distractions, and a lack of access to traditional support networks have caused some employees to turn to alcohol or drugs. At least 30 states are reporting increases in fatal opioid overdoses amid the COVID-19 pandemic. The percentages of individuals who sought screening for anxiety and depression in May were 370% and 394% higher, respectively, than in January, reported the nonprofit, Mental Health America.

Prescriptions in the U.S. for anti-anxiety medications and antidepressants rose 10.2% and 9.2%, respectively, in March compared with March 2019 according to health-research firm IQVIA Holdings Inc. Sales of alcoholic beverages in March were up 55% compared with March 2019 according to marketing research firm The Nielsen Co., and at least one state with legalized marijuana, Washington, reported record sales during the pandemic.

For many employees, the issues are not going to go away when they return to work, affecting employees’ well-being long after the crisis has passed. And it can continue for those who work remotely. A survey by alcohol.org found that one in three Americans are more likely to drink when working from home. The National Safety Council (NSC) is urging employers to implement substance abuse policies and procedures as part of their return to work strategy and offers free resources for employee mental health and wellbeing. Such issues can be a serious threat to worker safety and cost tens of thousands in productivity losses, absenteeism and presenteeism, and workers’ compensation claims if employers do not plan ahead.

Remote workers and cybersecurity

Almost as quickly as the pandemic brought the world to its knees, cybercriminals seized the opportunity to attack the millions working from home. Phishing attempts, the largest source of ransomware, are quickly increasing. According to Net Diligence, the average ransomware cost is $229,000 and the cost of a cyber breach for small businesses (85% of claims) is $673,787 and $8.8 million for large businesses.

In addition, data protection and managed services provider, Digital Guardian, published a report created by aggregating anonymized telemetry from January 1, 2020 through April 15, 2020, via 194 global companies. It found a 122% increase in employees copying company data to USB drives, 74% of that data was classified. Also, a 79% increase in data egress via all means (email, cloud, USB, etc.). More than 50% of observed data egress was classified data.

The Cybersecurity and Infrastructure Security Agency (CISA), a department of US Homeland Security, recently announced key cybersecurity recommendations for employees working from home.

  • Update VPNs, network infrastructure and devices used for remote work – as all devices are variables.
  • Notify employees of increased phishing attacks and offer training/guidance.
  • Ensure IT Security teams are proactively monitoring logs/devices and are prepared for incident response/recovery.
  • Implement Multifactor Authentication (MFA) on all VPN connections and wherever possible.
  • Routinely test VPN network for limitations of mass usage.
  • Do not use Public WIFI, even with a VPN.

A white paper prepared by TechAssure, a not-for-profit trade association for insurance brokers that specialize in technology-related risks, offers additional tips:

  • On all devices that employees are using to access their work environment, Multifactor authentication (MFA) is critically important.
  • Alert employees that fraudulent websites and apps are appearing daily claiming to contain COVID-19 resources, safety supplies, etc.
  • Password management is key. Reusing passwords is common, which increases vulnerability if one account is hacked.
  • Picking up the phone can avert a disaster if something appears suspicious. The client/vendor will appreciate the extra steps to confirm the request.

Cyber insurance policies might provide valuable coverage to mitigate against the possibility of a costly cyber incident during a time when many businesses can afford it the least.

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

Things you should know

Database of EPA-approved disinfectants for COVID-19 pandemic available via app

The Environmental Protection Agency has released its List N Tool, a new web-based application (app) that allows smartphone users and others to quickly identify disinfectant products that meet EPA’s criteria for use against SARS-CoV-2, the virus that causes COVID-19.

States without fee schedules pay more

The Workers’ Compensation Research Institute’s (WCRI) medical price index study found states with no workers’ compensation fee schedule pay higher prices for professional services. In states without fee schedules, including Indiana, Iowa, Missouri, New Hampshire, New Jersey, and Wisconsin, prices paid for professional services were between 42% and 174% higher than the median of study states with fee schedules.

Similarly, outpatient hospital payments are higher and growing at a faster rate in states without fee schedules. Comparing hospital payments from a group of common workers’ comp outpatient surgeries in 36 states from 2005 to 2018, WCRI researchers found that states that paid a percentage of charge versus a fixed-amount fee schedule paid as much as 168% more per surgical episode than the median of study states with flat-rate fee schedules in 2018.

Top 10 private industry occupations with the largest number of injuries and illnesses, 2018

The Insurance Information Institute released its list of the top ten private industry occupations with the largest number of injuries and illnesses. It may surprise you that retail salespeople and registered nurses had more injuries than construction laborers.

FMCSA final rule amends trucker hours-of-service regulations

The Federal Motor Carrier Safety Administration has unveiled a highly anticipated final rule the agency claims will add flexibility to hours-of-service regulations for commercial truck drivers.

CMS releases new WCMSA reference guide

The Centers for Medicare and Medicaid Services (CMS) released its latest version of the WCMSA reference guide version 3.1 (May 11, 2020). The link to the CDC life table has been updated to the current CDC life table (2017) CMS has been using as of April 25, 2020, to calculate an injured worker’s life expectancy for Workers’ Compensation Medicare Set-Aside. It should only result in minor differences.

Electrical safety group creates infographic for people working from home

Aiming to promote electrical safety among people who are working from home during the COVID-19 pandemic, the Electrical Safety Foundation International has published an infographic.

“Dirty Dozen” list of 12 most egregious employers focuses on coronavirus response

The National Council for Occupational Safety and Health (National COSH) releases the report each year and this year focused on companies and organizations that allegedly are failing at preventing their employees from exposure to the novel coronavirus.

Updated COBRA Model Notice issued

On May 1, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued revised COBRA model notices (both the general notice and the election notice), along with brief Frequently Asked Questions related to the Consolidated Omnibus Budget Reconciliation Act (COBRA).

State News

California

  • Insurance Commissioner Ricardo Lara issued an order requiring insurers to provide an adjustment to the premium in the form of a premium credit, reduction, return of premium, or other adjustment as soon as possible and no later than Aug. 11, 2020. The order covers insurance lines including workers’ compensation, commercial automobile, commercial liability, commercial multiperil, medical malpractice, and any other insurance line where the risk of loss has fallen substantially as a result of the pandemic.
  • The Division of Workers’ Compensation (DWC) and Workers’ Compensation Appeals Board (WCAB) continue to expand the hearing schedule.
  • There was an 11.3% drop in workers’ compensation independent medical review letters in 2019 when compared with 2018, according to a report issued by the Workers’ Compensation Institute.

Georgia

Illinois

Massachusetts

  • Attorney General Maura Healey called on the state’s Division of Insurance (DOI) to take immediate steps to ensure that businesses pay fair workers’ compensation insurance premiums that reflect the businesses’ decreased exposure to workplace injuries during the COVID-19 pandemic.

Michigan

  • Pursuant to the Governor’s latest Executive Orders, the Workers’ Disability Compensation Board of Magistrates’ hearing schedule has been updated.

North Carolina

  • Furloughed employees who are paid will not be counted on payroll for premium calculations, the rate bureau announced in a recent circular.
  • Deputy Commissioner Hearings (Non-Medical-Motion Hearings) to Resume in June 2020 via Webex.

Virginia

  • Workers’ Compensation Commission has issued an order to return to in-person hearings on or after June 11, 2020.

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

Things you should know:

State news: Coronvirus resources

All states

  • Most states have dedicated webpages on the coronavirus at their statename.gov website with links for businesses
  • The National Conference of State Legislature’s website has a list of passed and pending legislation by state
  • For updates to Workers’ Comp information, visit your state’s Workers’ Compensation website

California

Florida

Georgia

Illinois

Indiana

Massachusetts

Michigan

Minnesota

Missouri

Nebraska

New York

North Carolina

Pennsylvania

Tennessee

Virginia

Wisconsin

 

Regulatory relief for commercial drivers to combat COVID-19

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has issued a national emergency declaration to provide hours-of-service (HOS) regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak. This declaration is believed to be the first time the agency has issued nationwide relief and follows President Trump’s issuing of a national emergency declaration in response to the virus.

Department of Transportation issues notice related to CBD products

CBD products may have higher levels of tetrahydrocannabinol, or THC – the main psychoactive ingredient in marijuana – than the Department of Transportation allows in a non-controlled substance, the agency cautions in a Feb. 18 policy and compliance notice, adding that CBD use is not a “legitimate medical explanation” for a safety-sensitive employee who tests positive for marijuana.

Opioid use in construction: CPWR issues report, launches awareness training

The Center for Construction Research and Training (CPWR) has launched a beta version of a training program aimed at combating the opioid crisis in construction. Intended for use by experienced instructors and developed in conjunction with North America’s Building Trades Unions, the program comprises six sections and covers topics such as the opioid epidemic, prevention and harm reduction, and treatment and recovery.

Feb. 27 webinar from CPWR provided an overview of a recent report, and highlighted available resources and efforts to help mitigate the effect of opioids on the industry.

Helpful guide for choosing slip-resistant footwear

To assist in the selection and purchase of slip-resistant footwear for the workplace, Canadian research organization IRSST has published a free online guide.

Federal agencies launch website on school safety and security

The Department of Education, together with the departments of Health and Human Services, Justice, and Homeland Security, has launched a new website it calls a “one-stop shop of resources” for K-12 teachers, administrators, parents and law enforcement to identify, prepare for, respond to and mitigate school safety threats.

NIOSH launches online inspection tool for mast climbers

A new online tool from NIOSH is designed to guide users through daily pre-shift inspections of mast climbing work platforms and help identify common hazards associated with the equipment.

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

Legal Corner

Workers’ Compensation

$2.8 million award for emotional and financial damages upheld – California

In Reynaud v. Technicolor Creative Services USA Inc., an appellate court upheld a $2.8 million award to a United Kingdom citizen for emotional and financial damages related to delays in processing a green card application, finding the claims were not barred under the workers’ comp act. The company had arranged and sponsored a series of temporary work visas for the employee which his family also used to come to the U.S. In 2013, the employee asked the company to sponsor him for a green card and the company delayed and was very slow to implement the requirements.

The company told him that he would no longer remain employed after his visa expired in May 2016 and the employee and his family returned to England. Unable to find work, he developed depression and his wife sought counseling for depression and anxiety. The employee sued the company for negligence, alleging that it breached its assumed duty of due care “by failing to initiate the green card process.” A jury awarded $2.8 million to the couple.

The company argued it was protected by the exclusive remedy of the workers’ comp act, but the court found that the injuries were not caused by job-related duties or responsibilities, therefore the workers’ compensation law was inapplicable.

Truck driver is employee and cannot file personal injury claim – Georgia

In Estes v. G&W Carriers LLC, a married couple rotated driving responsibilities on their trips. The wife was injured while in the sleeping compartment when her husband was driving and rolled the truck.She filed a personal injury claim against the company. The company argued that the suit was barred by the exclusive remedy provision of workers’ comp and the court agreed.

While the wife argued she was an independent contractor because the company did not mandate a specific route be taken and that she could decline loads, the court found that the company had the right to control the time, manner and method of executing the work. It was the right to control, not necessarily the actual level of control, that governed the decision.

Widow can pursue tort claim against farm and forklift company, but not employer – Georgia

In Mullinax v. Pilgrim’s Pride Corp., the Court of Appeals reversed a trial court’s decision and allowed a tort case to proceed against two companies. The worker was a truck driver who was at a farm to transport chickens for processing by Pilgrim’s Pride Corp. A forklift operator employed by Rising Inc., which was contracted by Pilgrim’s to catch chickens and load them onto the trucks, left the forklift running when he went to the bathroom, and a co-worker of the truck driver, who was not authorized to drive a forklift, got into the forklift and ran over him.

The court upheld the dismissal of the case against Pilgrim’s, but allowed it to proceed against the owner of the farm and Rising as a jury could conclude that they had breached their duty of care.

Going and Coming rule clarified – Michigan

In Smith v. Chrysler Grp., LLC, an auditor was injured in a car accident while driving from home in his personal vehicle to a manufacturing plant owned by his employer. The employer reimbursed the auditor for his travel expenses. In reversing a decision of the Appellate Commission, a state appellate court found the auditor’s travel was an integral part of his work duties within the course and scope of the employment.

It noted while generally the going and coming rule prohibits workers’ comp benefits, there are exceptions. Each exception should be examined on its own merits and not as factors to be weighed. The situation met two exceptions: the employee was on a special mission for his employer and the employer paid for or furnished employee transportation as part of the employment contract.

High court denies benefits for school teacher – Missouri

In Annayeva v. Special Administrative Board of the Transitional School District of the City of St. Louis, a teacher slipped and fell inside the main entrance of the school, while carrying a bag of school-related papers. A security guard witnessed the fall. Although initially the teacher indicated she did not know the cause of the fall, after questioning by her attorney, she claimed the floor was covered with ice, dirt, and moisture.

The Commission did not find her testimony credible and denied the claim, but an appeals court overturned and the case made its way to the Supreme Court. The court found her not credible, that the accident did not involve a risk greater than any other and, therefore, was not compensable.

“Post-injury misconduct” does not include absence from the workplace – Missouri

In Hicks v. State of Missouri, an injured correctional officer was awarded temporary total disability (TTD) benefits after being terminated for unexcused absences. The employee injured his arm and shoulder during a training program and did not initially report the injury, but when an inmate asked what was wrong with his “wing”, he felt vulnerable and reported it. He had surgery and was eventually released for full duty, but informed his supervisor he was a risk to himself and others and requested light duty.

There was no light duty and the prison denied a request for a second medical decision. He stopped working after five days and was terminated for unexcused absences. He obtained another medical opinion, which suggested further treatment was needed. The prison authorized further treatment and additional surgeries were performed and two years later he was found capable of full duty without restrictions.

While the prison contested his claim for TTD because he was terminated for “post-injury misconduct,” the court noted the statute says the phrase “‘post-injury misconduct” does not include absence from the workplace due to an injury unless the employee is capable of working with restrictions and, therefore, his absences were attributable to his injury.

Drivers for Postmates are employees – New York

The Court of Appeals recently ruled that drivers for online food delivery service Postmates Inc. were employees eligible for unemployment insurance. The ruling noted, “Postmates has complete control over the means by which it obtains customers, how the customer is connected to the delivery person, and whether and how its couriers are compensated.”

Injured worker must be weaned from high dose of opioids – New York

In Matter of Forte v. Muccini, an automotive repair shop employee injured his back and received permanent partial disability. After undergoing surgery in 2005, he continued to receive opioids for over ten years and developed a tolerance to high dosages. The employer’s carrier sought an order directing that he be weaned from the opioid medications based upon the medical opinion of an IME. However, the employee’s physician warned that weaning him could result in increased blood pressure and other medical problems and that the employee was experiencing high levels of pain and following his own tapering regiment.

The Workers’ Compensation Board ruled that he should be weaned per the program developed by the IME. An appellate court upheld the ruling, noting it was for the Board to resolve the conflict in medical opinion and it had done so.

Workers’ Compensation Board will reopen SLU/Non SLU decisions after landmark court decisions – New York

Earlier this year, the Supreme Court’s 3rd Department, which handles workers’ compensation appeals, issued rulings in Saputo v. Newsday, Fernandez v. New York University Benefits, and Arias v. City of New York, which found that the Workers’ Compensation Board failed to abide by a 2018 decision, Taher v. Yiota Taxi. The ruling found that some workers were entitled to simultaneous schedule loss of use (SLU) and non-schedule loss (Non-SLU) classifications.

The Board had a policy that barred a worker, who had received benefits for a Non-SLU and was back at work at regular wages, from receiving SLU benefits. If the Board issued a prior decision contrary to the newly issued court decisions, the Board will reopen the cases upon request as stated in this bulletin.

Settlement of claim nixes civil action of assaulted residential counselor – Pennsylvania

In Grabowski v. Carelink Community Support Services Inc., the Superior Court upheld the dismissal of a worker’s civil action against her employer seeking damages for injuries from an assault by a patient at a residential treatment facility. She received over $75,000 in workers’ compensation and then entered into a compromise and release agreement and received a $40,000 lump sum from the employer.

She then filed a negligence action. However, the court noted the employer would liable only if she was attacked for purely personal reasons that were not related to her employment. While the passive receipt of workers’ compensation benefits does not bar an employee from suing the employer for negligence, she actively pursued and agreed to a settlement. In effect, this constituted an admission that the incident occurred in the course and scope of her employment.

Spider bite compensable – Virginia

In James Madison Univ. v. Housden, an appeals court found that a bite by a brown recluse spider was compensable. Noting that the employee had previously reported spiders in the building and that construction work in a boiler room located below her office may have disturbed insects and spiders, the court found she faced a greater risk than that experienced in ordinary life.

Failure to wear seatbelt nixes compensation – Virginia

In Mizelle v. Holiday Ice, an appellate court confirmed the decision of the Workers’ Compensation Commission that a truck driver’s conduct – not wearing a seatbelt – was considered “willful” under state case law and, therefore, compensation was barred. The “willful misconduct” provision in the state’s comp law states that an employer can prevail when asserting a defense of willful misconduct if the employer proves that the safety rule, or other duty, was reasonable, was known to the employee, was for the employee’s benefit, and that the employee “intentionally undertook the forbidden act.”

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

 

Coronavirus: Workers’ Compensation and OSHA considerations

Worker’s Compensation

Compensability

Occupational disease law is written with the intent to cover diseases that arise in the course and scope of employment and have an exposure that is elevated from the exposure of the general public. An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. A common disease that the public is exposed to is generally not covered under the occupational disease category, such as the flu and common colds. Furthermore, the National Council on Compensation Insurance (NCCI) notes that that many state workers’ comp statutes exclude “ordinary diseases of life.”

Therefore, in most situations, it would be difficult to prove that coronavirus resulted from a risk at work, as community spread has made the risk prevalent outside of the workplace and the incubation period can be anywhere from 2 to 14 days.

However, there are exceptions, notably healthcare providers and first responders caring for patients diagnosed with the coronavirus. Here employees are at a substantially greater risk of contracting coronavirus than the risk experienced by the general public.

Washington state, which operates a monopoly workers’ comp system, issued a directive providing workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. However, it also noted in most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition, and will be reviewed on a case-by-case basis. North Dakota has issued a similar directive. Other states may follow suit, so it is important to stay up-to-date.

Of course, claims will still be filed and will be determined on a case-by-case basis. Claim adjusters will look to see if employees can prove that they contracted the virus after an exposure at work, the exposure was unique to the workplace, there are no alternative means of exposure, and they can provide medical evidence to support the claim.

The Workers’ Compensation Insurance Rating Bureau of California is partnering with other work comp organizations around the country to create unique codes to identify COVID-19 claims. The new codes will allow the costs of the claims to be tracked, measured, and properly used for pure premium ratemaking and experience rating.

On-site employees: manufacturers, construction, retail

Industries such as manufacturing, construction, and retail face the reality that employees must work onsite. The challenge to keep workers safe in these environments becomes more daunting every day. It’s important to recognize that the uncertainty created by the spread of the virus is a major distraction and distractions can lead to accidents. Safety efforts must adapt to current realities and be the number one priority.

The CDC recommends that employers “actively encourage sick employees to stay home.” To identify high-risk employees, some employers have instituted temperature screening upon entering work, which requires training and protecting the worker who is taking temperatures.

Others have encouraged self-identification and relaxed paid leave policies to urge those with symptoms or those who live with individuals with symptoms to remain at home. Responsible employers have trained managers and supervisors to identify symptoms of possible infection in coworkers and encourage reporting, as well as train employees on responsible behavior, such as handwashing, social distancing, sharing cups, utensils, etc.

Staggering shifts, break and lunch times, adding night or weekend shifts to help with family obligations are other actions employers are taking to keep workers safe. Other steps include installing barriers or creating “zones” to limit employee interaction, cross-training employees, restricting visitors, increasing frequency of sanitizing effort, providing sanitary wipes throughout the facility, and urging employees to follow CDC guidance. Identifying key personnel and creating schedules to isolate them can help keep the facility open.

For construction, the Center for Construction Research and Training (CPWR) has released guidance and offered resources for employees and employers on safety protocols in both English and Spanish.

In retail, it’s important to recognize that even “essential” shopping can endanger low-paid workers who are not trained in pandemic preparedness. Grocery stores are ramping up efforts at disease control, cleaning surfaces and carts more aggressively, providing hand sanitizers, encouraging frequent handwashing, and limiting occupancy and controlling access to checkout lines to ensure social distancing. Some have lifted restrictions on wearing gloves and masks, reduced operating hours, installed sneeze guard barriers at checkout, and increased pay. Even with these efforts, the stores are often busy and understaffed, and employees feel anxious and vulnerable. Educating employees on how to stay safe and letting them know they are valued goes a long way.

The CDC has published an Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) with helpful information on what to do if there is a confirmed or suspected case in the workplace.

Telecommuting

The increase in telecommuting opens up another exposure for employers who are not used to having their workers work from home. Even those telecommuters who already know the drill about ensuring safe workspaces are facing different situations with children at home. Everyone is in an environment that is emotionally stressful. It’s good to periodically remind workers that they shouldn’t be sitting on a soft couch working in an awkward posture all day…that they need to be focused on proper positioning of back, wrist, and feet, and that they shouldn’t be plugging in power cords wherever they can and creating trip hazards. Tips on maintaining safe home workplaces are helpful.

Another issue facing employers is how to handle requests by employees for equipment such as an office chair to be delivered to their home. The need to set up, properly train the employee on how to adjust the chair, consistent treatment of all employees, and what to do with the equipment when the worker returns to the office should be considered.

Further, if faced with telecommuting requests by employees with concerns of potential exposure when an office is still open or when offices reopen, it’s important to assess whether such concern is reasonable before refusing this accommodation.

Existing workers’ compensation claims

Access to non-urgent medical care has been greatly affected during this crisis. Expect delays and longer recovery periods. Staying in touch with the injured employee and offering support is critical. Many workers compensation courts have suspended hearings and in-person meetings, while others are allowing virtual or telephone hearing options.

One positive note is the increased use of telemedicine, which the industry has been slow to adopt. Texas relaxed its rules regarding telemedicine and no longer requires patients to visit a doctor’s office before qualifying for telemedicine services and Ohio relaxed its rules that previously restricted the use of the home for video-based screening.

Privacy

Employers must be vigilant in complying with the various labor and employment laws implicated by the virus and be extremely cautious about sharing any health information related to 2019-nCoV diagnosis. Employers can notify managers, supervisors, and other employees who may have been exposed to an employee who contracted the virus but should not reveal the name of the employee, and discourage gossiping and presumptions.

Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. Everyone should refrain from offering medical opinions, but can encourage employees to speak with their physician, local health department, and to use telemedicine.

If an employer opts to take temperatures of workers, it is still considered a medical exam and protected by the ADA. Information must be kept private and in a confidential medical file.

Employee relations

This is a time of unprecedented anxiety and worry for everyone. Be patient with employees as they deal with the fear of being “essential” employees exposed to public interaction, learn “social distancing” at a manufacturing or construction site, adjust to working remotely, and worry about their economic future.

The fastest way to alienate employees is not to show respect for their safety. Anything employers can do to calm employees will help keep the operation going and build loyalty.

Set clear, reasonable guidelines and expectations. Allow employees to openly discuss their questions and concerns without fear of reprisal. Provide daily guidance on key topics like self-care and staying safe. Tell the workforce what the company is doing, how you’re doing it, and what is likely to happen next.

Employees want and need to feel valued and look to their executive team for confidence that there is a way forward. It will take their commitment and engagement to see the company through the crisis. The employer’s actions now will leave an indelible mark on the attitude, retention, and loyalty of employees.

Suggested resources:

CDC: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)

Bain : A CEO Plan for Coronavirus: Actions to Take Now

Gallup: COVID-19: What Employees Need From Leaders Right Now

National Institutes of Health: COVID-19 website featuring health and safety resources for workers who may be at risk of exposure to COVID-19.

Center for Construction Research and Training (CPWR): guidance and resources

The Scary Times Success Manual

OSHA

Dedicated webpage and guidance document

OSHA issued guidance on preparing workplaces for COVID-19, in both English and Spanish. It divides jobs into four risk exposure levels – very high, high, medium, and lower – and specifies what employers should do to protect workers based on their level of exposure. It also suggests employers review their procedures regarding contractors, visitors, and other third parties who access the workplace.

It also has a webpage providing information on hazard recognition, medical information, control and prevention, and additional resources.

Applicable standards

Although OSHA does not have a standard that covers the coronavirus (an infectious disease rule has languished for ten years), its webpage on COVID-19, notes that the General Duty Clause applies. This is a catchall the agency uses to cite employers where there is no standard that applies to the particular hazard. It requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Failure to take steps to protect employees in accordance with OSHA and CDC guidelines can result in enforcement action.

The Personal Protective Equipment (PPE) standard, 29 CFR 1910.132, (in general industry), which requires using gloves, eye and face protection, and respiratory protection also comes into play as does Respiratory Protection, 29 CFR 1910.134.

In California, 019-nCoV is covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard, which requires employers to protect workers from diseases and pathogens transmitted by aerosols and droplets and the agency recently issued guidance on the requirements to protect workers.

 

Recording and reporting requirements

Recording

Although OSHA’s recordkeeping rule exempts common colds and flu, it has explicitly stated that COVID-19 is a recordable illness when a worker is infected on the job. According to OSHA’s website COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19
  • The case is work-related, as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

With the exception of health care, it is going to be difficult to connect work-relatedness of individual cases as community spread has set in. It is going to be necessary to determine on a case-by-case basis, whether it is more likely than not that an event or exposure in the workplace caused or contributed to the illness. For example, if an employee diagnosed with coronavirus was in the workplace after exposure, and a cluster of employees he/she was in close contact came down with coronavirus, it may be work-related because if an exposure in the work environment caused or contributed to the illness, there is a presumption the illness is work related.

An employee reporting an illness to the employer and/or asserting it was contracted in the workplace does not make the case recordable. It is the employer’s responsibility to determine work-relatedness and to document the decision. Further, if the exposure occurred while the employee was working outside the U.S. it is not recordable. “Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA log.”

Reporting

The existing criteria for reporting severe injuries apply to COVID-19 cases, including work-relatedness. Employers must report any hospitalization of a worker if the employee is admitted to the in-patient service for treatment within 24 hours. Given the latency/incubation period between exposure/contraction of the virus, and the time symptoms appear or are significant enough to result in an in-patient hospitalization, it’s unlikely many hospitalization reports will be filed.

Employees must report a fatality to OSHA when it is work related, a confirmed diagnosis, and the employee succumbed to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.

 

Relief for healthcare respiratory protection annual fit-testing

In an effort to preserve the supply of N95 filtering facepiece respirators during the COVID-19 pandemic, OSHA temporarily suspended its requirement for annual respirator fit testing in the health care industry. The temporary enforcement guidance will remain in place until further notice.

Voluntary use respirators

In many industries, employees are asking to wear respirators/masks. If employers permit “voluntary use” (not required by regulations), the employer still must meet certain obligations set forth by OSHA. Employers are also permitted to decline to allow employees voluntary use respirators including N95 masks, if a respirator is not required because of exposures levels in the workplace.

Telecommuting

Regulation on telecommuting is lax and the due diligence is up to employers. OSHA has repeatedly said that it will not investigate the safety of home offices.

However, there is clear guidance on recording injuries while working from home in regulation 29 C.F.R. § 1904.5(b)(7) : “How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”

The regulation gives a few examples.

  • “If an employee drops a box of work documents and injures his or her foot, the case is considered work-related.”
  • “If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related.”

Meeting regulatory deadlines

While it is anticipated that OSHA will cut some slack on enforcing regulatory deadlines, such as annual LOTO inspections and three-year PS audits, it’s important to document why the deadline was missed and undertake interim or alternative measures where feasible. Simply saying, there was a pandemic is not enough.

Retaliation when employees refuse to work

Co-workers of sick employees who refuse to work may be protected by OSHA’s anti-retaliation provisions. The worker must believe in good faith that there is an imminent danger in the workplace and insufficient time to eliminate the danger through regulatory enforcement. Experts suggest that when employees are being rotated into different positions and asked to do things they normally do not do with minimal training or when a group of employees feels their safety is threatened, the risk of successful retaliation suits is higher.

If the employer is following all recommended CDC guidance, communicating the practices may ease the anxiety. However, if the employee still refuses to work, termination could be a risk, if the fear is reasonable.

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

Things you should know

Proposed rule could mean stiff Medicare secondary payer penalties for insurers

The Centers for Medicare & Medicaid Services released a long-awaited proposed rule regarding late reporting of Medicare Secondary Payer data. While the regulation established that insurers and self-insured report the information to CMS when they accepted a medical responsibility in a workers’ compensation claim or provided payment or settlement to a Medicare beneficiary report, it took 13 years to address penalties for failure to accurately report the data.

The proposed rule allows penalties of up to $1,000 per day per claim for failure to register and report Medicare secondary payer data or report with sufficient accuracy. It places a five-year statute of limitations on fines and recovery by CMS.

NLRB releases new definition of “joint employer”

As expected, the National Labor Relations Board (NLRB) tightened up the definition of “joint employer” in a final rule announced Feb. 25. The final rule takes effect April 27 and establishes an entity is a joint employer of a separate employer’s workers only if the two employers share or codetermine the employees’ essential terms or conditions of employment.

Free online training: Preventing workplace violence in retail, food service

The University of Southern Maine, in conjunction with the Maine Small Business Development Center, has launched three free online training modules intended to help employers (fewer than 250 employees) and workers in the retail and food service industries prevent workplace violence. The three modules are:

  • Employer and manager (two hours)
  • Employee (one hour)
  • Trainer (one hour)

Each module is self-paced, allowing users to log in and resume learning when convenient.

New resources from the Center for Construction Research and Training (CRC)

FMCSA final rule delays compliance date for CMV driver minimum training requirements

The Federal Motor Carrier Safety Administration is delaying by two years the compliance date of its final rule on minimum training requirements for entry-level commercial motor vehicle drivers. The new compliance date is Feb. 7, 2022. For more information.

New video for tower workers: safety climb systems

new video from the National Association of Tower Erectors highlights the importance of properly inspecting and using safety climb systems installed on communication towers.

State News

California

  • In a unanimous decision, the state Supreme Court held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable, even when the policy only applies to employees who choose to bring personal items to work. However, the ruling provides a multi-factor test as to whether “onsite employer-controlled activities” must be compensated as “hours worked.”

Illinois

  • The Department of Human Rights (IDHR) issued guidance for employers on the requirements created by the Workplace Transparency Act (WTA), which became effective Jan.1. The guidance provides the “minimum” standards required in connection with aspects of the Act.

New York

  • The New York City Commission on Human Rights (NYCCHR) has released a factsheet on the anti-discrimination protections provided to individuals performing services as independent contractors and freelancers under the New York City Human Rights Law (NYCHRL) that went into effect January 11, 2020.

Wisconsin

  • The Department of Workforce Development (DWD) announced the rollout of additional educational tools that will help workers, employers, and other stakeholders learn more about and connect with organizations and resources that work to advance workplace safety. These include updated publications, a new blog, and social media videos.

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

Legal Corner

ADA

Recent EEOC settlements

  • Des Plaines, Ill.-based M&M Limousine Service will pay a deaf job applicant $30,000 to settle a disability discrimination lawsuit for refusing to hire the applicant based on his disability and failing to consider whether he could do the job with or without reasonable accommodation.
  • Washington-based Prestige Care, Inc., Prestige Senior Living, LLC, and their affiliates will pay $2 million and furnish other relief to settle a disability discrimination suit. The company had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process and inflexible leave policies.
  • Barnhart, Mo.-based, Home Service Oil Company, doing business as Express Mart, will pay $25,000 and furnish other relief to settle a disability discrimination suit for failing to hire a job applicant with Tourette’s syndrome and neurofibromatosis for a part-time sales clerk position because of his medical conditions.
  • California-based local grocery outlet PAQ, Inc., doing business as Rancho San Miguel Markets, has agreed to pay $100,000 to settle a disability suit, reinstate the employee and improve its policies related to the ADA. A deli clerk with a disability provided Rancho San Miguel Markets a doctor’s note requesting an accommodation. Her request was denied, and she was subsequently fired.

Workers’ Compensation

30-day grace period to avoid legal fees not extended for holidays and weekends – Florida

In Zenith Ins. Co. v. Cruz, an appellate court ruled that a carrier has 30 calendar days from its receipt of a petition of benefits to rescind a denial of the claim to avoid the imposition of legal fees and that is not extended if the thirtieth day falls on a weekend or holiday. In this case, the claim was initially denied and the 30-day grace period expired on a Saturday. On the Monday, following the 30-day grace period, the employer/carrier rescinded the denial, agreed to pay all benefits, and issued an indemnity benefits check.

The employee was awarded a claim for attorney fees and the carrier appealed. Although rule 60Q-6.109 of the Rules of Procedure for Workers’ Compensation Adjudications provides that if any act required or allowed to be done falls on a holiday or weekend day, performance of the act may be satisfied if done on the next regular working day, the court held that an administrative rule cannot supersede the language of the statute. The statute does not specify business days and precedent has treated other deadlines concerning the filing and receipt of petitions as referring to calendar days.

Positive alcohol test doesn’t nix benefits – Florida

In Krysiak v. City of Kissimmee, a utility technician for the city injured his shoulder. Earlier in the year, he was reprimanded for purchasing beer in a city vehicle, signed a last-chance warning, and completed an employee assistance program. When he returned to full duty, he was still receiving temporary partial disability benefits, missed several days of work without calling in, and a letter was drafted terminating him for job abandonment. However, he returned to work before the letter was sent. When he did report to work, his supervisor was concerned about his ability to work and HR ordered an alcohol and drug test, which came back positive for alcohol. He was terminated for violating the city’s substance abuse policy.

The city has a policy prohibiting workers from being under the influence of alcohol while at work, but the policy does not designate a specific prohibited alcohol level or define the phrase “under the influence.” While a JCC ruled that temporary partial disability benefits were barred since he was terminated for misconduct, an Appeals court disagreed. The city did not present the results of the drug test and simply saying he did not look fit to work was insufficient and remanded the case.

Bus driver who suffered stroke not entitled to comp benefits – Georgia

In Henry County Board of Education v. Rutledge, while warming the air brakes a bus driver noticed smoke or steam coming out of the dashboard and lost consciousness. He had suffered a stroke and filed a workers’ compensation claim. The case bounced between the courts and Board of Workers’ Compensation, revolving around whether exposure to a substance from the bus contributed to or worsened his pre-existing conditions (hypertension and diabetes) and risk for stroke.

The Court of Appeals explained that a stroke is generally not compensable unless the employee can show that his work was a contributing factor. Since the Board had analyzed whether his exposure contributed to or aggravated his injury, it was correct in denying the claim.

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

In O’Neil v. Ill. Workers’ Comp. Comm’n, a divided Appellate Court ruled that the Workers’ Compensation Commission does not have statutory authority to assess penalties against an employer for a failure or delay in authorizing reasonable and necessary medical treatment. A marine technician received approval for surgery for an injury to his right knee, but delayed surgery because he was the only marine technician on staff and it was a busy time. About a week before the scheduled surgery, the employer’s carrier revoked the surgery authorization, indicating that there was a need for an additional investigation because they had found records of an earlier surgery on the knee.

An arbitrator found the earlier surgery was on the lower leg and that there was a causal relationship between the employee’s work and the knee condition. The arbitrator ordered surgery and assessed a penalty of $6,900 as well as the payment of legal fees. However, the Commission determined and the court agreed, it did not have statutory authority to award attorney fees and penalties.

Widow denied benefits because of husband’s preexisting condition – Massachusetts

In Arruda v. Zurich American Insurance Co., an appeals court reversed a district court decision awarding death benefits to the widow of a utility’s sales executive killed in a work-related car crash. He crashed his car on the way to a work-related event, crossing all lanes of traffic.

The autopsy conducted after his accident listed the primary cause of death as heart disease, with spine fracture due to blunt impact as a contributory factor and the police said he experienced a medical episode. His preexisting conditions included hypertension, cardiomyopathy, depression, anxiety, high cholesterol, diverticulosis, insomnia, fatigue, muscle pain and weakness, and fainting spells. Four months before the accident, he had felt weak and fainted and had an implantable cardioverter-defibrillator placed in his chest.

The court found the insurance company presented substantial evidence that his death was caused or contributed to by preexisting medical conditions.

Staffing agency fined $55,000 for misclassifying workers – Massachusetts

Delta-T Group Massachusetts Inc., a national staffing agency that places education sector workers in temporary positions, has been cited $55,000 in penalties for misclassifying employees by the Attorney General. It has agreed to modify its practices to require all school workers who use its services be treated as employees going forward. The state uses a three-prong test, similar to California’s ABC test.

Comp exemption for North Dakota businesses upheld – Minnesota

In John Devos vs. Rhino Contracting, the state Supreme Court issued an order (but not a full opinion) upholding the decision of an appeals court that a law that gives a special workers’ compensation exemption to North Dakota employers is not unconstitutional. North Dakota has a monopolistic comp system and significantly lower benefits than Minnesota.

A 2005 law excludes injured employees of North Dakota companies from collecting Minnesota benefits if they worked in Minnesota for fewer than 240 hours in a calendar year. It was designed to give small businesses, such as mom-and-pop pizza places that delivered into Minnesota, a break so they wouldn’t have to purchase comp insurance in both states.

Workers’ comp coverage not enough to trigger enhanced benefit for mesothelioma – Missouri

In 2014 the state passed a statute that allows a lump-sum payment equal to 300% of the state’s average weekly wage for 212 weeks in occupational mesothelioma claims resulting in permanent disability or death. A dairy farm worker was diagnosed in 2014 with mesothelioma caused by toxic exposure to asbestos that occurred at work and died a year later. He and his adult children filed for a comp claim with enhanced benefits. The farm had closed in 1998.

The case, Vincent Hegger et al. v. Valley Farm Dairy Co., made its way to the state Supreme Court. The court upheld lower decisions that employers have to take affirmative action to elect the enhanced benefits, simply having a workers’ comp policy was not sufficient. The court added that, under the plain language of the statute, employers that do not make the requisite affirmative election for the enhanced benefit have rejected such liability and are thereby exposed to civil suit. Since the farm had closed 16 years before the statute, it could not affirmatively elect to accept liability for the enhanced benefit.

SLU awards must be made for body members, not subparts – New York

In Matter of Johnson v. City of N.Y., a patient care technician sustained work-related injuries to both his knees and in another later accident to his neck, back, shoulder and hip. When it was determined that the scheduled loss of use (SLU) must be reduced by his prior SLU awards of the legs, which encompassed both hip and knees, the employee appealed. Upon appeal, the court noted SLU awards are limited only to those “members” statutorily enumerated in the statute or guidelines. A leg is listed as a statutorily-enumerated member, but not its subparts.

NFL player not a seasonal worker – Pennsylvania

Acknowledging that in earlier decisions, the appellate court had held that injured NFL players are “seasonal” employees for purposes of computing their average weekly wage, the court held that circumstances in Pittsburgh Steelers Sports, Inc. v. Workers’ Comp. Appeal Bd. (Trucks) were different.

Here, the player had a two-year contract, was required to attend all minicamps, practice sessions, to make public appearances and perform other services at the discretion of the employer. This meant he was not a seasonal worker.

Failure to establish a reasonable degree of medical certainty nixes benefits – Tennessee

In Armstrong v. Chattanooga Billiard Club, an employee suffered an electrical shock and alleged injuries to her mouth, face, and right arm. The employer’s physician argued that the dental injuries were not caused by the electrical shock, whereas the employee’s physician said they “could be.” In 2014 the Workers’ Compensation Reform Law strengthened the statutory requirement for compensability. An injury was not compensable unless it arose primarily out of and in the course and scope of employment and causation had to be established to a reasonable degree of medical certainty.

The Appeals Board found the employee’s doctors “could be” opinion insufficient to satisfy the statutory causation standard.

Benefits awarded under occupational disease presumption despite history of heart disease – Virginia

In City of Newport News v. Kahikina, an appeals court affirmed the Workers’ Compensation Commission’s award of benefits to a police officer for heart disease. In 2017 he filed for workers’ compensation benefits, stating his cardiomyopathy was caused by the stress of his job. As early as 2004, he began having heart problems and in 2011, a cardiologist diagnosed him with cardiomyopathy and attributed his irregular heartbeats to his consumption of Red Bull. In 2015, he was hospitalized for chest pain and diagnosed with “unstable angina” as well as hypertension, diabetes and high cholesterol. The Commission found that this episode triggered the two-year statute of limitations and that his claim was timely filed.

The city argued the statute of limitations should have begun with his first diagnosis of cardiomyopathy and, therefore, the claim was untimely. The appellate court disagreed, noting the employee did not know that his occupational disease arose out of and in the course of his employment until the 2015 incident.

Worker who was denied benefits and attempted suicide cannot sue – Wisconsin

In Francis G. Graef v. Continental Indemnity Company, a livestock worker was gored by a bull, became depressed, and was prescribed anti-depressants. About three years after the incident, the insurance company denied refilling the prescription. A month later he attempted suicide by shooting himself in the head. Surviving the attempt, he sued the insurance company that argued the exclusive remedy applied. While a circuit court denied summary judgment to the insurer, the appeals court said the issue should stay with the state’s workers’ compensation system. “(T)he exclusive remedy provision allows for an insurer to be held liable for an employee’s new or aggravated injuries, regardless of fault, as long as those new injuries relate back to the original compensable event.”

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