Legal Corner

ADA
Employer takes proper steps to win approval of terminating employee taking opioids

In Sloan v. Repacorp, Inc. (S.D. Ohio February 27, 2018), an employee who worked 10% – 20% of his time on heavy machinery was taking both prescription morphine and non-prescription opioids. The company’s handbook requires all employees to notify management if they are taking nonprescription or prescription medications and testing positive for these could result in termination. However, the employee did not inform his supervisors.

After his company learned of his drug use, the employee voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. When he was terminated less than two weeks later, he filed suit on charges including disability discrimination and retaliation under the ADA. He alleged he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability.

The company, however, had made a good faith effort to involve him in the interactive process. It asked him to consult with his doctor to see if there were alternative medications or treatments for his pain that did not include opiates, but he refused. The court noted that he was not fired because he was a direct threat to himself or others, but because he failed to participate in the interactive process. Thus, he impeded the company’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate his disability.

This decision serves as a reminder that individualized assessments should always be made and an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.


Workers’ Compensation
Statute of limitations for temporary disability awards clarified – California

In County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike, a deputy sheriff suffered an injury to his right shoulder on July 31, 2010, and received benefits for five years up to July 31, 2015. He sought to reopen the petition and receive temporary disability benefits and a WCJ awarded the benefits and the Board agreed.

However, a dissenting panel member argued that the statute does not permit an award of temporary disability more than five years after the date of the injury. The Court of Appeal, 4th Appellate District, agreed, noting the language of the statute clearly indicates that temporary disability payments cannot be awarded for periods of disability occurring more than five years after the date of the underlying injury.

Interactive process and accommodation required after injury – California

In Bolanos v. Priority Business Services, an injured worker returned to work with restrictions and suffered a hernia while he was working in the office. He settled a workers’ comp claim for the hernia, but the company told him they could no longer accommodate him. He filed suit alleging disability discrimination and retaliation and a jury awarded him almost $40,000 and attorney fees of $231,470.50, plus $10,697.08 in costs.

The company argued that it could not show it engaged in the interactive process and reasonably accommodated the employee because a trial judge disallowed evidence of the workers’ compensation claim and settlement from consideration by the jury. However, the Court of Appeals found the company was not prejudiced by the trial judge’s ruling.

Implanted surgical hardware does not qualify as continued remedial care – Florida

Under Florida statutes, workers have two years from date of injury to file a worker’s compensation claim, but the time can be extended to one year after the date that the employer last paid indemnity benefits or furnished remedial care. In Ring Power Corp. v. Murphy, an employee who injured his back underwent spinal surgery and doctors used rods and screws to stabilize his spine while the bone grew back together.

A judge determined that a petition for benefits seeking additional medical treatment was not time barred because the company was continuously furnishing remedial treatment as long as the rods and screws remained within the worker’s body. The 1st District Court of Appeal disagreed noting that the pins and screws no longer served a purpose.

Worker’s suspected intoxication not factor when insurer fails to meet 120-day deadline to deny compensability – Florida

In Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., an employee fell and fractured his hip while emptying the garbage. The employer was informed of the injury but did not report it to the insurer. The injury was complicated by infections and, ultimately, five surgeries were required. Ten months after the accident, the worker filed the first notice of the injury and the insurer elected to pay and investigate under Florida’s 120-day rule. The insurer did not file a notice denying compensability of the workplace injuries because of intoxication until almost 16 months after the injury. The court noted the failure to meet the 120-day deadline to deny the compensability of an injury claim waived the insurer’s intoxicated-worker rights.

Appellate court misconstrued “arising out of employment” requirement – Georgia

In Cartersville City Schools v. Johnson, a school teacher was denied benefits by the State Board of Workers’ Compensation’s Appellate Division for a fall incurred while she was teaching a fifth-grade class because the act of turning and walking was not a risk unique to her work. Upon appeal, the Court of Appeals noted, “For an accidental injury to arise out of the employment there must be some causal connection between the conditions under which the employee worked and the injury which (s)he received.”

It said the Appellate Division overlooked the proximate cause requirement and focused on the concept of equal exposure – that the teacher could have fallen outside of work while walking and turning, as she did while she was at work. Therefore, it erroneously concluded her injury resulted from an idiopathic fall and was not compensable. Although an employee could theoretically be exposed to a hazard outside of work that mirrors a risk faced while at work, it does not mean an injury resulting from the workplace hazard is non-compensable.

No death benefits for family in asbestos claim – Georgia

In Davis v. Louisiana-Pacific Corp., an employee, who worked at a Louisiana-Pacific facility in Alabama, moved to Georgia after leaving his position. Several years later, he was diagnosed with mesothelioma and died. His family filed a claim for death benefits arguing that, although he was last exposed to asbestos in Alabama, his diagnosis and death occurred in Georgia.

While the court acknowledged that there was not a work-related “injury” until he was diagnosed with mesothelioma, the “accident” that resulted in his condition was his exposure to asbestos while he was employed in Alabama. Had the worker’s contract been executed in Georgia he would have been eligible for benefits, but it was made in Alabama and, therefore, the state did not have jurisdiction over the claim.

Children can sue over birth defects related to father’s on-the-job exposure – Illinois

The exclusive remedy afforded by worker’s comp does not apply to two teenagers who suffered birth defects as a result of their fathers’ workplace exposure to toxins because they were seeking damages for their own injuries, not their fathers’ noted the 1st District Court in reversing the Circuit Court of Cook County. The fathers’ employer, Motorola, had argued successfully to the Circuit Court that the birth defects were derivative of a work-related injury to their fathers’ reproductive systems. However, upon appeal, the 1st District Court noted the children weren’t employees of Motorola, and they were suing over their own injuries, not their fathers’.

Failure of company to get out-of-state coverage nixes death claim – Illinois

In Hartford Underwriters Insurance Co. v. Worldwide Transportation Shipping Co., the Iowa-based shipping company hired an Illinois truck driver who only worked in Illinois. After he died from a work-related injury, his widow filed an Application for Adjustment of Claim against Worldwide under the Illinois Workers’ Compensation Act. Since the company only had workers’ comp coverage in Iowa at the time of the fatal accident and none of the insurer’s conduct suggested that coverage extended to out-of-state drivers, the insurer was not liable for death benefits.

Dismissal of tort claims against co-workers upheld – Missouri

Four cases that occurred during the period (2005 – 2012) when the comp law did not extend an employer’s immunity to co-workers were recently considered by the Supreme Court and the dismissal of the tort claims upheld. “For purposes of determining whether a co-employee can be liable for an employee’s injury between 2005 and 2012, the co-employee’s negligence is assumed,” the court said. The focus needs to be on whether the breached duty was part of the employer’s duty to protect employees from foreseeable risks in the workplace.

In Conner vs. Ogletree and Kidwell, Conner suffered an electrical shock when he came in contact with a live power line. The Supreme Court said the failure of his co-workers to ensure that the line was de-energized was a breach of the employer’s duty to provide a safe workplace. In Evans vs. Wilson and Barrett, the court said that a worker’s negligent operation of a forklift was also a breach of his employer’s duty to provide a safe workplace.

In McComb v. Nofus, the court said the decision of two supervisory employees to send a courier out into a dangerous winter storm was not a breach of any personal duty owed to McComb. In Fogerty v. Armstrong, the court said a worker’s misuse of a front loader was a breach of the employer’s duty of care.

Average weekly wage includes compensation, value of meals and lodging for former pro athlete – Nebraska

Nebraska’s statute states that wages do not include “board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring.” In Foster-Rettig v. Indoor Football Operating, a professional indoor football player received $225 for each game he played in, plus an additional $25 per game if the team won or played well. The team also paid for him stay at a particular hotel in Omaha seven days a week during the football season and he got 21 meal vouchers for local restaurants.

His career was ended by a back injury and he filed a comp claim. At trial, he provided expert evidence about the value of the hotel room and meals. The Court of Appeals agreed with the compensation court that benefits should be based on an average weekly wage of $903.25, including an average salary of $231.25 per week from playing in games, plus an average of $350 per week for lodging and $320 per week for his meals.

Landlord liable for labor law claim even if tenant contracted for work without their knowledge – New York

In Gonzalez v. 1225 Ogden Deli Grocery Corp. a deli leased retail space, hired a painter to add a decoration to its sign, and set up the A-frame ladder. The painter fell from the ladder and filed a Labor Law action against the landlord for his injuries. Under Section 240(1), property owners have absolute liability for failure to protect workers from elevation-related risk and Section 241(6) imposes a non-delegable duty on owners to comply with the safety regulations of the code. Even if the deli contracted with the painter without the knowledge of the landlord, the landlord was liable, according to the Appellate Court. The landlord only presented unsworn statements from the deli owner and a deli worker and hearsay statements cannot defeat summary judgment if they are the only evidence.

Tort claim against co-employee can proceed – New York

In Siegel v. Garibaldi, an employee who was walking to the campus safety office to clock out was struck by a car driven by a co-worker, who was heading home. The injured worker received comp benefits and filed a tort action against his co-worker. While the appellate court noted that the law ordinarily limits a worker to a recovery of workers’ compensation benefits if he is injured by a co-worker, in this case, the driver was no longer acting within the scope of his employment. The road was open to the public and the risk of being struck in a crosswalk is a common risk shared by general members of the public.

Expert medical evidence is required to establish occupational disease claim – North Carolina

In Briggs v. Debbie’s Staffing, an employee operated a large mixing machine at a refractory manufacturer. Employees were required to wear respiratory protection masks because the process produced a lot of dust. After the employee was fired for attendance-related issues, he filed a workers’ compensation claim, asserting chronic obstructive pulmonary disease and asthma. While a physician initially opined that the asthma was likely caused by the working conditions, he did not know the worker was a smoker and had worn a respirator mask and testified this might affect his opinion on causation.

The employee argued that his own testimony about the working conditions were sufficient to establish a claim, but the appellate court noted only an expert is competent to opine as to the cause of the injury and present medical evidence that the employment conditions placed the employee at a greater risk than members of the general public.

Slip and fall on shuttle bus compensable – Pennsylvania

In US Airways Inc. v. Workers’ Compensation Appeal Board, a flight attendant was trying to place her luggage on the racks in a shuttle bus that was taking her from the airport to an employee parking lot, when she slipped on water on the floor and injured her foot. The airline argued that the incident did not take place on the airline’s property and that the shuttlebus was part of her commute to work, since it did not own the shuttlebus and did not require its employees to park in the parking lot. The Commonwealth Court ruled that her commute ended at the parking lot and work began on the shuttle, thus, her injury was compensable.

Worker was not permanently and totally disabled – Tennessee

For almost twenty years, the employee worked in a factory of General Motors. He suffered several on-the-job injuries and his last injury required surgery on his right shoulder. When he was cleared to return to work with restrictions, GM could not accommodate him and he never returned to work, nor sought other work. He filed a request for permanent total disability benefits, asserting that he had no vocational opportunities.

Two qualifying experts expressed conflicting opinions as to his vocational abilities and the employee said he did not consider himself unable to work, although not in the type of positions he had held in the past. The Supreme Court’s Special Workers’ Compensation Appeals Panel ruled against the benefits, noting it’s the trial court’s discretion to accept the testimony of one expert over another and to consider an injured employee’s testimony concerning his abilities and limitations.

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

OSHA watch

Enforcement of the Beryllium Standard begins May 11

Enforcement of the final rule on occupational exposure to beryllium in general, construction, and shipyard industries begins on May 11, 2018.

Local governments and emergency services will be notified when a company receives a serious citation

Spurred by a fatal chemical explosion and fire at a New York cosmetic factory, OSHA, the Environmental Protection Agency, and the Department of Homeland Security are working on the new protocols for communicating and training with local governments and first responders.

Regional campaign on ‘focus four’ construction hazards in Region Three

Running from March to June, a campaign to raise awareness of the four leading safety hazards in the construction industry (electrocution, falls, struck-by, and caught-in or caught-between) will take place in Delaware, Maryland, Pennsylvania, Virginia, West Virginia and Washington. Representatives will conduct toolbox talks on each hazard.

A $1 million settlement for safety violations

Hebron, Ohio-based Sunfield Inc. has agreed to pay $1 million in fines and hire a safety and health coordinator to resolve violations found at the company’s Hebron plant. The inspection, which took place after two employees suffered severe injuries when they came in contact with moving machine parts, revealed the company lacked adequate power press guarding and hazardous energy control procedures that could have prevented the incidents.

Standard interpretation related to recording and reporting injuries of temporary workers versus HIPAA requirements

A recent standard interpretation addresses injury and illness recordkeeping requirements pertaining to an employer that supervises temporary workers on a day-to-day basis but has limited access to their medical records when an injury or illness occurs.

New fact sheet for owners and managers on conducting a walk around

The fact sheet urges business owners and managers to personally conduct periodic walk around inspections. It reviews the best way to prepare for an inspection, what to do while onsite, and how to develop an abatement plan.

New bulletins provide information on horizontal drilling hazards and chemically induced hearing loss

“Preventing Hearing Loss Caused by Chemical (Ototoxicity) and Noise Exposure” was published in conjunction with the National Institute for Occupational Safety and Health and provides recommendations to employers and safety professionals about identifying ototoxicants in the workplace and establishing hearing conservation programs where these chemicals are used.

“Avoiding Underground Utilities during Horizontal Directional Drilling Operations” highlights the hazards associated with striking different underground utilities. Horizontal directional drilling has reduced visibility compared to vertical drilling. The bulletin was based on an incident that led to an explosion at a nearby restaurant, resulting in a worker fatality.

Enforcement notes

California

  • Alhambra Foundry Co. Ltd. faces $283,390 in proposed fines for workplace safety and health violations following a confined space accident that resulted in the amputation of an employee’s legs.
  • Petro Chemical Materials Innovation in South Gate faces $72,345 in penalties for failing to de-energize and guard a moving conveyer belt while a worker was cleaning it, resulting in the amputation of the worker’s right arm.

Florida

  • Jacksonville-based Jax Utilities Management Inc., a utilities contractor, was cited for $271,606 in proposed penalties and deemed a severe violator for exposing employees to trenching hazards. The investigation was launched after an employee was injured and hospitalized when an unprotected trench collapsed.
  • Naples-based L.I. Aluminum Design Inc., a pool and patio installer, received four serious citations, and faces proposed penalties of $40,096 after a worker fatally fell.
  • Middleburg-based Southeastern Subcontractors Inc. is facing $22,173 in proposed penalties following a heat-related fatality.
  • A Texas communications contractor, Tower King II Inc., faces penalties of $12,934 after three workers were killed while trying to install a new antenna on a communications tower in Miami Gardens. The capacity of the rigging attachments was not adequate to support the loads and the workers fell over 1,000 feet.

Georgia

  • Jose A. Serrato, a Marietta-based independent roofing contractor, was cited for exposing employees to fall hazards at a worksite in Birmingham and cited with $133,604 in proposed penalties. Mr. Serrato has been cited seven times in the past five years.

Massachusetts

  • Luis Guallpa, doing business as Milford-based Guallpa Contracting Corp., faces penalties of $299,324 for exposing workers to fall and other hazards at a Nashua, New Hampshire work site. The company had previously been cited in 2014 and 2015.
  • Jet Logistics Inc. (JLI) and New England Life Flight Inc., doing business as Boston MedFlight (BMF), were ordered to reinstate a pilot who lost his job after complaining about safety concerns and possible violations of the Federal Aviation Administration (FAA) regulations. JLI and BMF must pay the pilot $133,616.09 in back wages and interest; $100,000 in compensatory damages; reasonable attorney fees; and refrain from retaliating against the employee. The employers must also post a notice informing all employees of their whistleblower protections under AIR21.

Nebraska

  • An egg processing facility, Michael Foods Inc.’s of Wakefield, faces proposed penalties of $188,464 after an employee was fatally struck by a dock leveler. The proposed penalties relate to lockout/tagout, electrical and arc flash hazards violations.

New York

  • Summit Milk Products LLC faces $143,000 in proposed penalties for uncorrected and new hazards. A follow-up inspection was done after the company failed to report how it corrected violations found in an earlier inspection. Again, it was found that employees were not protected from heated milk in excess of 150 degrees and the injuries were not recorded in the 300 log.

Pennsylvania

  • Allentown-based Lamm’s Machine Inc. faces $14,782 in proposed penalties for exposing employees to hazardous chemical vapors from a degreasing operation in an enclosed space.

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

HR Tip: Report: why employers are getting wellbeing wrong

A new report from the Campbell Institute, A Systems Approach to Worker Health and Wellbeing indicates not all employers are getting worker wellbeing right, and it could be affecting the sustainability of their business. While many organizations today are focused on wellbeing programs that tackle smoking cessation, weight loss or nutrition, the Campbell Institute report indicates a more multifaceted approach to worker wellbeing focused on improving the areas of highest risk to their employees can have the most benefit.

Recognizing there is not a one-size-fits-all solution to worker wellbeing, the Institute proposes a systematic approach to assessing and addressing total worker wellbeing, such as the “Plan Do Check Act” model. It’s designed to identify top problem areas, develop intervention strategies at an organizational level to address those risks, and ensure that the improvements are maintained.

The report includes a 35-item questionnaire that addresses six primary stress areas on the job.

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

The ten most dangerous jobs

While it is generally known that the highest number of workplace fatalities occur among truck drivers and material moving occupations, the chances of a fatality are much higher in specific industries when the fatal work injury rate, calculated per 100,000 full-time equivalent workers, is used. According to a recent report in EHS Today, the ten most dangerous jobs are:

No. 1 – Loggers

The most-dangerous profession, loggers experienced 91 fatalities in 2016 for a fatality rate of 135.9 out of 100,000 workers, an increase of 33% since 2011, when it was ranked number two. Risks: falls, struck-by, dangerous tools such as chainsaws and axes

No. 2 – Fishers and related fishing workers

Fishermen experienced 24 fatalities in 2016 for a fatality rate of 86 out of 100,000 workers, which was a decline of 29% since 2011, when it was ranked number one. Risks: drowning, struck by lightning, crushed by equipment

No. 3 – Aircraft pilots and flight engineers

Pilots and flight engineers experienced 75 fatalities in 2016 for a fatality rate of 55.5 out of 100,000 workers, a slight drop from 2011. Risks: crashes

No. 4 – Roofers

Roofers experienced 101 fatalities in 2016 for a fatality rate of 48.6 out of 100,000 workers, an increase of 50% since 2011. Risks: falls, struck-by, and heat

No. 5 – Refuse and recyclable material collectors

Refuse and recyclable material collectors experienced 31 fatalities in 2016 for a fatality rate of 34.1 out of 100,000 workers, a decrease of 17% since 2011. Risks: dangerous machinery, crushed by equipment, struck-by, traffic accidents, struck by vehicle

No. 6 – Structural iron and steel workers

Steel and ironworkers experienced 16 fatalities in 2016 for a fatality rate of 25.1 out of 100,000 workers, a slight decrease from 2011. Risks: falls, struck-by, heat, crushed by materials

No. 7 – Truck drivers and other drivers

Employees who drive for work – including truck drivers – experienced 918 fatalities in 2016 for a fatality rate of 24.1 out of 100,000 workers, which is similar to 2011. Risks: traffic accidents, struck by vehicle, other drivers, construction zones, sleep deprivation, texting/talking while driving

No. 8 – Farmers, ranchers, and agricultural managers

Agricultural workers experienced 260 fatalities in 2016 for a fatality rate of 23.1 out of 100,000 workers, a slight decline from 2011. Risks: dangerous machinery, chemicals, heat

No. 9 – Supervisors of construction workers

First-line supervisors of construction trades and extraction workers experienced 134 fatalities in 2016 for a fatality rate of 18 out of 100,000 workers. Risks: struck-by, falls at height and on level, heat, use of large equipment

No. 10 – Grounds maintenance workers

New to the list, grounds maintenance workers experienced 217 fatalities in 2016 for a fatality rate of 17.4 out of 100,000 workers. Risks: heat, cold, noise, chemical exposure, ergonomics-related issues, machinery

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

Court decision: OSHA not legally bound by five-year look back for repeat violations

A recent court decision indefinitely extending the time limitation for OSHA to assess repeat violations has serious implications for employers. The case, Triumph Construction Corp. v. Sec. of Labor, involved a repeat excavation-related citation issued to Triumph Construction Corp. in 2014. A prior citation of the same evacuation standard was issued to Triumph in 2009.

Triumph argued that the repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation was outside OSHA’s stated repeat look-back policy in its Field Operations Manual (FOM), which was three years at the time. Under the Obama administration in 2016, the FOM was updated to expand the look back period to five years.

However, an OSHRC Administrative Law Judge and the U.S. Court of Appeals for the Second Circuit upheld the repeat citation. The court pointed out that neither the Occupational Safety and Health Act nor the regulations OSHA had issued under the Act spelled out any time period that limited the issuance of repeat citations. The time limitation set forth in the enforcement manual “is only a guide” and “is not binding on OSHA or the commission.”

In effect, the ruling means OSHA has the discretion, to go as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a “repeat” violation.

Why it’s important

Repeat violations can harm employers in a number of ways. First, the maximum penalties are ten times higher than serious and other-than-serious violations – $129,336 compared to $12,934. Plus, a violation at one location of a multi-establishment company can be used as the basis for a repeat violation at any other location in a fed OSHA state within that organization, a policy established under the Obama administration that still stands.

Yet, even more important is the way that repeat violations are used. OSHA continues to issue the shaming press releases for significant offenses and that includes repeat violations. Also, it increases the possibility of an establishment being placed into the Severe Violator Enforcement Program (SVEP), where they are publicly branded as severe violators, subject to more inspections, and have no way to get out. Further, it can affect insurance premiums and the ability to compete for contracts.

What employers should do

The best practice, of course, is to avoid OSHA inspections and citations. However, if an inspection occurs and minor penalties are issued, don’t assume that the best course of action is to pay the penalty. The court decision has made it clear that the FOM is not binding on OSHA or the Commission and does not create any substantive rights for employers. If a serious citation is issued and confirmed, the risk of a much more costly and damaging repeat violation exists indefinitely. When there is a good faith defense, it may be well worth contesting the violation.

If a citation is confirmed, employers should be vigilant to ensure that citations regarding the same hazards don’t reoccur.

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

Work-related injuries can increase a company’s healthcare costs through underreporting and on-going care

Two new studies came to a troubling finding: the usual method of studying reported injuries using workers’ comp records may underestimate the true number of injuries due to underreporting and use of group health insurance. To understand the actual cost of workplace injuries and illnesses, NIOSH-supported researchers at the Harvard T.H. Chan School of Public Health studied the cost of health insurance and patterns of underreporting.

One study focused on female healthcare workers. The injured workers’ combined insurance claims were $275 greater at three months post-injury, and at six months had climbed by $587.

Another study looked at whether injury reporting patterns differed among racial groups. Researchers compared the number of workers’ self-reported injuries to the number recorded by their employer’s official injury reporting system among a group of patient-care workers in a U.S. hospital. They found there were almost two times the number of self-reported injuries than those actually reported. While researchers noted that more research is needed, they found that self-reported injuries were more likely to go unreported to the hospital by black workers than were injuries to white workers.

Employer takeaway: These findings indicate that workers’ compensation costs do not reflect the true cost of work-related illness and injury. There are many explanations for why injuries are underreported, but the safety climate and supervisory enforcement behaviors, which are critically important to determining whether employees experience accidents at work, play a major role in whether employees are comfortable reporting injuries. Workers may fail to report injuries to their employer because they fear retaliation by their employer, stigma from their coworkers, or because they perceive the injury to be too minor or an accepted part of the job.

When an injury isn’t reported or properly cared for immediately, it can worsen and lead to higher health care costs, more lost time, and reduced productivity. One of the best ways to control costs is through early reporting and intervention through the work comp process. The often-quoted study by the Hartford Financial Services Group found that injuries reported four or five weeks after the incident are 45 percent more expensive than injuries reported within the first week due to increased health costs and possible legal fees (or even a lawsuit) associated with late reporting. Equally important, treating injuries through the work comp process will help to ensure an early return to work and improve safety programs.

In addition, employers may not recognize the hurdles employees face in filing a claim. Poor communication about the process, language barriers, cumbersome and paper-laden processes, no provisions for weekend or late-shift employees to report injuries immediately, and slow adoption of technology to report injuries are some of the common roadblocks to early reporting.

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

Long-term opioid prescriptions greatly increase the duration of temporary disability

The Workers’ Compensation Research Institute (WCRI) examined the impact of opioid prescriptions on the duration of temporary disability benefits for workers with lower back injuries. The conclusion: long-term opioid prescriptions lead to temporary disability durations more than three times longer than claims without opioid prescriptions. Long-term is defined as having prescriptions within the first three months after an injury and three or more filled opioid prescriptions between the 7th and 12th months after an injury.

According to the study, The Impact of Opioid Prescriptions on Duration of Temporary Disability, a small number of opioid prescriptions, over a short period of time, did not lengthen temporary disability.

Although medical practice guidelines often advise against routine use of opioids for the treatment of nonsurgical low back injuries, opioid prescribing in these cases is still common in a number of states. Workers living in high-prescription areas were more likely to receive opioid prescriptions than workers who lived in low-prescription areas.

The study examined data for injuries between 2008 and 2013 where workers had more than seven days of lost work time in 28 states. The states, which represent over 80 percent of benefits paid, were Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

States with the highest average opioid prescribing rates:

  • Louisiana: 87 percent
  • Alabama: 85 percent
  • North Carolina: 82 percent
  • Tennessee: 82 percent

States with the highest average longer-term opioid prescribing rate:

  • Louisiana: 30 percent
  • South Carolina: 18 percent
  • Georgia: 17 percent
  • North Carolina: 16 percent

Employer takeaway: Working with physicians following evidenced-based guidelines helps ensure the proper treatment for injured workers. Moreover, few employers have escaped the pain of the opioid crisis. Educating workers as to the dangers of prescription opioids, as well as identifying workers who have an addiction and providing the appropriate assistance, is key.

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

A past claim is the most predictive factor in determining the likelihood of a future claim

A study published in the Journal of Occupational and Environmental Medicine in December 2017 “Reoccurring Injury, Chronic Health Conditions, and Behavior Health: Gender Differences in the Causes of Workers’ Compensation Claims” offered insights into the likelihood of repeat workers’ comp claims:

  • Regardless of gender, a higher proportion of workers with past claims also experienced a future claim, compared with those workers who had no prior claim. For both men and women, having a past claim was the most predictive factor in determining the likelihood of a future claim.
  • There are other factors associated with the filing of subsequent claims that are more closely linked to the worker’s gender. Among working women, the combination of a past claim and certain behavioral risk factors (e.g., depression, poor sleep habits, and headache) increases the likelihood of a future claim, yet not so in men. Researchers caution, however, that some of the gender difference may arise because men are less prone to admit they suffer from those same behavioral risk factors.

Employer takeaway: Regardless of the severity of the injury, addressing the exposures that are causally connected to that injury should be the first priority. Hazards, left unchecked, will only lead to additional injuries. In addition, future claims are associated with the individual worker’s overall health condition and require an integrated approach that connects health, well-being, and safety.

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

 

OSHA Inspectors ordered to crack down on employers who failed to electronically file

With much confusion surrounding the rule, a little more than a third of workplaces that were required to electronically file their 2016 Form 300A did not file the reports. The agency stopped accepting the 2016 data as of Jan. 1, 2018. In February, compliance officers were instructed to initiate inquiries into whether workplaces had electronically filed their 300A forms for 2016. Failure to file can lead to an other-than-serious citation, with a maximum penalty of $12,934. The agency has six-months from Dec. 15, 2017 to June 15, 2018, to issue citations to those employers who failed to electronically file the required information.

The agency is not requiring electronic OSHA 300 logs or 301 forms now, in anticipation of a new rule. Two types of establishments are expected to continue submitting 300A summary forms electronically: those with 250 or more employees, and those with between 20 and 249 employees in high-hazard industries. The deadline is July 1, 2018.

If you would like FREE access to a secure, online OSHA 300 Log record keeping software, maintain records by location, and allow you to electronically upload the required records, please go to our website by clicking here.

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

Things you should know

NCCI report: National Medicare Set Asides and Workers Compensation: 2018 Update

A new report from the National Council on Compensation Insurance (NCCI), Medicare Set Asides and Workers Compensation: 2018 Update analyzes trends in the submission of Medicare set-asides (MSA) to understand the cost drivers and the medical care of workers injured on the job who are or are likely to become eligible for Medicare based on 11,500 Medicare set-asides.

About 64% of claimants are eligible for Medicare, not because of age but because they have been on Social Security Disability for at least two years. Another 29% of claimants are eligible due to age, and about 7% are likely to become eligible within 30 months. Overall MSAs represent more than 40% of total submitted workers’ compensation settlement costs. More than half of MSA’s involve an attorney.

Estimated future drug costs are the main reason that the Centers for Medicare & Medicaid Services are requiring increases of Medicare set-aside amounts.

New CPWR database shows 42 percent of construction worker deaths involve falls

In a 33-year period, falls accounted for nearly half of all construction worker deaths and more than half of the workers killed lacked access to fall protection mostly in the residential building, roofing, siding and sheet metal sectors, according to the Center for Construction Research and Training (CPWR). The new searchable database includes reports of fatality reports for 768 construction industry fatalities.

ISHN’s annual hand protection update

Industrial Safety and Hygiene News has released its annual hand protection update.

First blood test for concussions approved by FDA

The Food and Drug Administration (FDA) recently approved a blood test to evaluate and diagnose concussions, the first of its kind. This new kind of testing is quick and may reduce reliance on CT scans which can expose patients to radiation.

Up to 21 percent of asthma-related deaths may be from on-the-job exposures: CDC report

Occupational exposures may have contributed to 11 percent to 21 percent of all asthma-related deaths among 15- to 64-year-olds between 1999 and 2016, according to a recently released report from the Centers for Disease Control and Prevention.

Musculoskeletal disorders widespread among plastic surgeons

Nearly 80 percent of plastic surgeons experience work-related musculoskeletal issues or injuries, according to the results of a recently conducted survey of practitioners.

Cyber incidents top list of ten highest threats to U.S. businesses

Allianz’s Risk Barometer 2018 has released its annual survey of risk experts from 80 countries. For the first time, the No. 1 risk in the U.S. (with 45% of the vote) is cyber incidents (moving up from No. 2 last year), with business interruption the largest loss driver after a cyber incident.

Depression and fatigue increase risk of work-related injuries in women: report

A new study in the Journal of Occupational and Environmental Medicine found that women who suffer from depression, anxiety and fatigue are more likely to be injured at work. Nearly 60 percent of women, as compared to 33 percent of men, reported that they experienced a behavioral health condition before they were injured.

State News

Massachusetts

Nebraska

  • The Supreme Court has signed off on changes to Rule 15: Records Checked Out governing the procedures for filing workers’ compensation appeals. It also adopted changes to non-adjudicatory Rules 26, 47 and Addendum 2. View amendments.

New York

Pennsylvania

  • A bill that would have created a drug formulary for injured workers failed to pass the House ending in a split 98-98 vote.

Tennessee

  • The Bureau of Workers’ Compensation has produced a bullet-point summary to help explain the changes to the medical fee schedule rules, which are now in effect.

Wisconsin

  • Employers now subject to tort claims for temp workers’ injuries (see Legal Corner).

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