Watch out for 20 costly workers’ comp mistakes in 2020: Part One (1 – 10)

For many employers, workers’ comp was a bright spot in 2019. Rates were low, workplaces continue to be safer, and the industry made significant strides in controlling opioids. Yet, there are unresolved issues and persistent trends that can spell trouble for complacent employers in 2020.

As employers continue to grapple with long-term labor shortages, it’s important to be mindful that workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

The order of the following listing does not reflect importance and some may not apply to your workplace. We hope you will use the list to establish your priorities:

  1. Not taking a holistic view of injured employeesRegardless of the size or type of claim, there’s been an overarching shift in treating injured employees as consumers, rather than claimants. This means not only advocating for them and giving them support and a voice in handling claims, but also recognizing the social and economic factors that affect recovery, and the psychology of pain. Taking the time to understand the needs of the individual employee both improves claim outcomes and bolsters employee morale.
  2. Relaxing claims monitoringWhen claims are down, it’s easy to divert attention elsewhere and leave the claim to the adjuster. Yet, three to five percent of claims drive 50 to 60 percent of the cost and it doesn’t take a catastrophic injury to create a complex, costly claim. Delayed recovery, which can be caused by co-morbidities, psychological or family problems, employment issues, attorney involvement, or prescription abuse increases the duration and cost of a claim. Early identification of these potential high-cost claims reduces costs.

    Also, when legacy claims linger on autopilot, by default, the employer commits to costly ongoing medical care that often involves opioids. While the industry has done a good job of controlling opioid prescribing for new claims, regular intervention is necessary for older claims to accelerate settlements and improve pain management.

  3. Not recognizing marijuana is here to stayThe continuing trend of states legalizing marijuana for both medical and recreational use in spite of the federal ban has made it one of the top challenges in maintaining a safe workplace. Staying abreast of evolving laws and cases, as well as a clearly defined policy on how marijuana will be addressed in the workplace, are necessary to ensure the safety of all workers and decrease the likelihood of adverse employment actions. Shifting cultural acceptance of marijuana as well as its legalization in many states means that employers need to thoughtfully evaluate their drug testing policies.

    Case law in 2019 moved toward protecting the medical use of marijuana in the workplace. Sixteen states provide workplace protections for legalized medical marijuana use either through their statutes or through case law, including Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia, and Massachusetts.

    Experts postulate that there will be more law suits from employees or job applicants who were terminated or not hired because they failed a drug test and take medical marijuana. Further, the question of marijuana as treatment in workers’ comp claims will continue to be a hot issue in 2020.

  4. Failing to understand what’s happening at OSHAWhile many observers expected a decline in the number of OSHA workplace inspections, they increased to 33,401 in FY2019, higher than in any year since 2015. There’s been a record number of $100,000+ citations, higher penalties, more willful and repeat citations, as well as worker safety criminal prosecutions.

    On October 1, OSHA implemented major changes to how it prioritizes inspections and other compliance activities. Factors now considered in inspection weighting include:

    • Agency enforcement priorities
    • Impact of inspections on improving workplace safety
    • Hazards inspected and abated
    • Site-Specific Targeting (SST) program objective

    Further, the agency announced that it is moving away from its long focus on “OSHA recordables” as a way to measure the safety of a workforce and will focus its enforcement efforts on leading indicators, which are proactive.

  5. Failing to properly classify employeesWhile the contractor vs. employee status debate has existed for many years, it ramped up in 2019 and is expected to be a hot issue in 2020. Some estimate that over 30% of the workforce is part of the gig economy. With the passage of AB5 in California and a growing number of court cases, expect to see more legislation and court cases.
  6. Developing a false sense of security from distracted driving policiesOver the past five years, motor vehicle accident claims accounted for 28% of workers’ comp claims over $500,000. They now account for more worker fatalities than any other cause and savvy employers know they have to go beyond state laws to develop best practices. Employers are being held liable for employee crashes, even when employees use hand-free devices. The National Safety Council considers hands-free devices to be just as distracting as hand-held devices while driving.

    A distracted driving policy is only the beginning. It must be implemented, updated, and consequences for non-compliance enforced. There are growing options for discovering violations – locking devices, GPS monitoring, in-vehicle cameras, and so on.

  7. Being unprepared for workplace violenceWith more high-profile workplace shootings, fear of workplace violence is on the rise. According to the Society for Human Resource Management (SHRM), one in seven workers do not feel safe at work. Unfortunately, incidents and attitudes that lead to workplace violence are a reality at all workplaces. Workers feel safer and more valued when investment is made in security and preparation.
  8. Not reassessing your PPEWhen NASA was forced to cancel the first-ever spacewalk by two women because it did not have two appropriate space suits, social media erupted with stories from women in all industries about ill-fitting or no PPE. Through continued advancement and technological changes, “smart” PPE with sensors that monitor, collect, and record biometric, location, and movement data is on the rise. In addition, employees’ personal preferences and increased comfort have driven new innovations.

    Providing the right PPE is another way companies can recruit and retain more talent.

  9. Ignoring changes in workplace ergonomicsMusculoskeletal disorders (MSDs) develop over time, but are highly preventable at a reasonable cost. Yet, they account for close to one-third of all occupational injuries and illnesses and have a median of nine days away from work.

    New technologies and devices, an aging workforce, temporary workers, more employees working remotely, the dramatic shift to e-commerce, coupled with massive changes in warehousing and office designs have introduced new ergonomic challenges. Moreover, employees want to work in a comfortable environment and embrace employers that take a holistic approach to ergonomics. A 2019 study by Future Workplace and View found that air quality and natural light were most important to employees, topping fitness facilities.

    Addressing new potential ergonomic risks now will prevent costly injuries in the future, improve productivity, and retain talent.

  10. Failing to stay in touch with your medical provider networkPerhaps you’ve had a few good years with no lost-time injuries. No real need to stay in touch with your medical network. But networks and providers change as do work processes. An ongoing face-to-face relationship ensures your workers get appropriate and priority treatment as well as leads to better outcomes for injured employees.

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

Culture Issues: Having a Good Culture is More than being OSHA & HR Compliant (Benchmarking Your Culture)

If you cannot measure it, you cannot improve it.” – Sir William Thomson (Lord Kelvin).

Sure, you can think you’re improving something, but unless you know what the problem was in the first place you can’t truly fix it, and if you don’t truly fix it your improvement is nothing more than band-aid surgery. For example, a baseball player is in a deep slump and can’t hit a lick. Suddenly he’s goes four for five in a game and thinks he solved his problem. But what caused the problem? Without analyzing and benchmarking what he’s been doing all along, i.e. the angle of his bat, how high he holds his hands, the all-important “launch angle,” he will not have a true measure of if he is on the right track or just “having a good day.”

This is not uncommon in the business world. Let’s take for example your experience modifier, which is one of the biggest drivers of an employer’s workers’ compensation premium. The lower your experience modifier is the lower your premium will be.

Your experience modifier is based on your data, total claim dollars and audited payroll amounts over a three-year period.  Unfortunately, most insurance agents will come to you and say: “You have a 0.94 experience modifier. That is great! You are getting a credit of 6% for a great loss history.” In other words, your company is making money. Therefore, you must be stressing to your employees to be job safety conscious. But that’s not automatically the case.

Many times a business owner believes because they are making money they have a good culture, so all is good.  However, when they conduct an analysis, and do a deep dive into the all-important data points, they can see that there are issues within the company that is holding them back from real growth, productivity, accountability and profitability. From making real money.

To Continue Reading: Construction Today Magazine

Culture Issues: Accountability When it Comes to Job Performance

Close your eyes and imagine you’re the manager of a professional baseball team, it’s Game 7, bottom of the ninth, two outs, your team is up 3-2 with the tying run on third base, and the winning run on first base. Batter hits a fly ball to the gap in right center field, and the base runners go on contact. The center fielder starts to sprint… if he catches it – game over; if he plays it on one hop – the score is tied with the winning run in scoring position. The center fielder dives at full speed, lands on the ground as the ball just skips over his glove… the 3rd base runner ties the score as the ball continues to roll all the way to the warning track allowing the 1st base runner to score – the game is over and you lost.

Now, as the manager of the team, what is your reaction?  Do you “back” your fielder and compliment him on making a rational decision? Or, do you hold him “accountable”, by laying blame and berating the player for making a bad choice?

Continue to read at: Commercial Construction & Renovation

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

 

Things you should know

BLS report on injuries and illnesses

Nonfatal occupational illnesses and injuries held steady in 2018 at 2.8 per 100 workers, marking the first time since 2009 that they did not decline, according to the Bureau of Labor Statistics (BLS). The total number of nonfatal workplace injuries and illnesses reported by private industry employers also remained unchanged last year compared to 2017, at 2.8 million. For the first time, the report included the number of visits to medical treatment facilities for nonfatal occupational injuries that required days away from work, which totaled 333,830 cases. Just over 39,000 of those involved in-patient hospitalization.

Retail was the only industry to report an increase in total recordable cases, although subsectors of other industries also saw increases.

Slips and falls mean high comp payouts in retail

Retail industry workers miss an average of 24 days of work due to injuries, according to a report by AmTrust Financial Services Inc. The highest claims payouts in retail were attributed to injuries from slips or falls from ladders or scaffolding at an average of $21,000 per claim; strains or repetitive motion injuries, averaging $14,000 per claim; and motor vehicle collisions, averaging $13,900 per claim. Nearly a quarter of all payouts were associated with lifting injuries.

Among retailers, the most hazardous classes included meat, fish or poultry retailers, hardware stores, automobile parts and accessories stores, and barbershops or hair styling.

New report on work-related MSD’s in construction

recent report from the Center for Construction Research and Training (CPWR) finds that although work-related MSDs in construction have declined, the number of days away from work (DAFW) has increased. DAFW grew from eight in 1992 to 13 in 2017.

The report also includes resources to help reduce MSDs.

New government guidelines address weaning patients off opioids

The CDC’s guidelines on opioid prescribing three years ago were well received by the worker compensation sector. New guidelines, issued by the U.S. Department of Health and Human Services on Oct. 10, are meant to give doctors a better grip on tapering off opioids, do not call for eliminating them from a patient’s care when “the benefit of using opioids outweighs the risk,” and provide “advice to clinicians who are contemplating or initiating a change in opioid dosage.”

Incentives for wearing tracking devices can trigger creative cheating

recent article in the Huffington Post suggests that employees get ingenious when they fall behind in meeting their targets. Strapping the tracker to the pet hedgehog, giving it to their children to wear, or putting it in a sock in the dryer (a permanent-press cycle is about 10,000 steps) and letting it roll are some of the ways they’ve gamed the system.

EPA modifies regulations for chemical storage

The Risk Management Program Reconsideration Rule, removes the requirement that companies publicly disclose the chemicals stored on their grounds, rescinds third-party audits and incident investigation root cause analysis, and mandates and modifies emergency planning and response requirements.

Early PT reduces visits and costs

Injured workers who start therapy within three days of injury require 38 percent fewer physical therapy visits to achieve successful outcomes, according to a white paper by One Call, a healthcare management company. “However, if an injured worker starts conservative care more than 30 days post-injury, the time to discharge increases from less than three weeks to nearly six weeks.”

Three new resources to help manage the use of nanomaterials

The Center for Construction Research and Training (CPWR) released three new Toolbox Talks, each in English and in Spanish, to help the construction industry manage the potential dangers of nanomaterials:

  • Identifying Nano-Enabled Construction Materials
  • Introduction: Nano-Enabled Construction Materials
  • Prevent Exposure: Nano-Enabled Construction Materials

New video series aimed at raising worker awareness of MSDs

A new virtual toolkit from the European Agency for Safety and Health at Work, also known as EU-OSHA, consists of a series of videos aimed at helping workers understand their risk of musculoskeletal disorders and how to prevent them. Each of the 14 videos in the Understanding Musculoskeletal Disorders toolkit features Napo, an animated 3D character.

Illicit drug tool kit for first responders

A new virtual toolkit from NIOSH is intended to help protect first responders from exposure to illicit drugs, including fentanyl.

State News

California

  • The Insurance Commission lowered the average advisory pure premium rate benchmark to $1.52 per $100 of payroll, effective Jan. 1, 2020 from $1.99 per $100 of payroll in July 2019.
  • AB5, which changes the criteria used to classify employees and independent contractors, goes into effect Jan.1, 2020. Some estimate that nearly 2 out of 3 workers who are classified as independent contractors will be affected.
  • The Department of Industrial Relations, Division of Workers’ Compensation may be delaying injured workers’ access to benefits and increasing costs to employers, according to a state audit report that found the division does not have enough qualified medical examiners to handle caseloads.
  • The Division of Workers’ Compensation reminds claims administrators that report of claim counts for calendar year 2019 is due April 1.

Florida

  • The 7.5 percent rate reduction demanded by the Office of Insurance Regulation will take effect Jan.1.

Illinois

  • The Cannabis Regulation and Tax Act (“CRTA”) goes into effect January 1, 2020 and the state took the additional step of amending the Right to Privacy Act to include cannabis within the definition of lawful products. This prohibits employers from taking adverse actions (refusing to hire, terminating, demoting) against employees because they use a lawful product while not at work. The CRTA sets forth several factors regarding the discipline or discharge of an employee.
  • The Workplace Transparency Act (“WTA”) goes into effect January 2020 and bars employers from unilaterally requiring that a current or prospective employee waive, arbitrate, “or otherwise diminish” existing or future claims, rights, or benefits related to unlawful discrimination, harassment, or retaliation.
  • The average medical payment per claim with more than seven days of lost time was more than 15 percent higher than the median of 18 states studied, according to a recent study by the Workers Compensation Research Institute (WCRI).

Minnesota

  • A new regulation provides that workers may be eligible for vocational rehabilitation services if they need help returning to work after an injury and if their employer cannot meet their work restrictions. A rehabilitation invoice penalty warning has been added to its state workers’ comp policies. Claims administrators have 30 days to pay or deny rehabilitation services. If they do not meet this deadline, they could be fined up to $2,000.

Missouri

  • The Division of Workers’ Compensation announced that the supplemental surcharge for the fund will drop from 3% to 2% starting Jan. 1. The supplemental surcharge is billed quarterly and is based on net premiums.

Nebraska

  • Legislative bill 418 states that if a workplace injury results in a death of an immigrant, the consular officer of the nation in which the employee is a citizen is regarded as the sole legal representative of any dependents residing outside of the U.S. Prior to final settlements, non-resident dependents may file with the Workers’ Compensation Court a power of attorney designating any suitable person residing in the state to act as attorney.

    The bill also states that service providers, collection agencies and creditors cannot attempt to collect a debt from an injured worker or their spouse for treatment of a work-related injury if the matter is pending in the Workers’ Compensation Court.

New York

  • The drug formulary goes into effect December 5. Any new prescription must be for a formulary drug, and a provider must obtain prior authorization for any non-formulary drug before writing a new prescription.
  • The Workers’ Compensation Board has dropped the assessment rate on employers for 2020 to 12.2% from 12.6% in 2019. The assessment is used to fund the administration of the workers’ compensation system, and to fund benefits paid to volunteer firefighters and ambulance workers.

North Carolina

  • The Industrial Commission has formed the Criminal Investigations and Employee Classification Division to focus on the misclassification of employees and premium fraud.

Pennsylvania

  • The Supreme Court ruled that the fluctuating workweek (FWW) pay method is not a proper method of overtime pay calculation under the Minimum Wage Act (PMWA). Employers using this pay method for non-exempt, salaried workers should take immediate action to review and revise their compensation method for these employees.
  • Beginning in October 2020, employers in the construction industry will be required to use E-Verify, the federal government’s web-based program that allows employers to verify an employee’s work-authorization electronically.

Virginia

  • The WCRI reports that reimbursement for physicians and other providers dropped 14% from 2017 prices after the fee schedule took effect in January 2018. There were 36 states in the study and the state moved from sixth-highest in 2017 to 12th, and was the only state that showed a significant decrease in prices for professional medical services.

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

Legal Corner

ADA
Lawsuit alleging wrongful termination because perceived-as disabled reinstated

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

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

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

EEOC disability suit settled for $2.65 million

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

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

Workers’ Compensation

Tort claim for lead poisoning barred by exclusive remedy – California

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

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

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

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

Undocumented worker denied medical care for injury – Florida

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

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

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

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

JCC may not ignore opinion of expert medical advisor – Florida

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

Civil suit can proceed in workplace parking lot shooting – Georgia

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

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

TTD denied for failure to follow work restrictions – Georgia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Workplace fire did not conclusively cause lung disease – Nebraska

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

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

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

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

Worker employee, not independent contractor – North Carolina

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

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

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

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

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

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

Employee of staffing agency cannot sue borrowing employer – Pennsylvania

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

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

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

OSHA reiterates that online safety training may not meet requirements

In a standard interpretation issued earlier this year, OSHA answered the question:

Are online training programs acceptable for compliance with OSHA’s worker training requirements?

Interestingly, this standard interpretation is very similar in wording to one issued 25 years ago. While the agency acknowledges that online training is a useful component of an overall training program, it alone is not compliant. To be compliant, it must have an interactive component: employees must be able to ask questions of, and receive responses from, a qualified trainer in a timely manner. “Training with no interaction, or delayed or limited interaction, between the trainer and trainee may halt or negatively affect a trainee’s ability to understand and/or retain the training material,” according to the document.

OSHA noted that one way for the employer to give workers this opportunity in the context of computer-based training is to provide a telephone “hotline” so that employees will have direct access to a qualified trainer at the time they are taking the online training. But even that is not considered optimum by the agency in regard to certain kinds of training.

“Equally important is the provision of sufficient hands-on training because it allows an employee to interact with equipment and tools in the presence of a qualified trainer, allows the employee to learn or refresh their skills through experience, and allows the trainer to assess whether the trainees have mastered the proper techniques.” Supplementing online training with hands-on training, such as how to use a tool or don PPE, is critical.

The agency also addressed the use of safety training videos and their policy is essentially the same as that for computer-based training. OSHA urges employers not to relying solely on generic, “packaged” training programs in meeting their training requirements as site-specific elements should be included, and to the extent possible the training should be tailored to employees’ assigned duties. They also emphasized that if videos are used, an interactive component must be provided that allows the opportunity for employees to ask questions of the trainer.

It also emphasized that employers must review specific OSHA standards and related guidance to determine what is required in specific situations.

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

Seven reasons to stay strategic in a Insurance Soft Market

Some businesses are experiencing an unpleasant shock when renewing their commercial insurance. Market conditions for many commercial lines are changing from a “soft” to a “hard” market, where premiums increase and underwriting requirements tighten. Fortunately, workers’ compensation is a notable exception.

A “soft” insurance market can give a false sense of reality and some companies relax their focus on managing risk and losses. Yet, maintaining an accurate accounting of your performance is critical in both a soft and hard market. This ensures your company is less vulnerable to the inevitable cycles that occur in all lines of insurance.

Here are seven reasons to keep your eye on strategy:

  1. The company’s risk profile is key regardless of market conditions and has implications across all business categories. Given the availability of big data today, the workers’ compensation premium is based on more than payroll and the Experience Mod. What’s critical is the insurance’s company perception of your risk. Importantly, the totality of your risk is relevant. For example, how you select drivers and conduct fleet safety affects both auto insurance and workers’ comp.

    Many factors go into the assessment of risk. The insurance company expects your risk management to be an ongoing process. It’s important to know the granular details of claims and what was done post-incident, so an informed conversation can take place when questions arise. A strong partnership with a broker who understands your business is essential to long-term cost control.

    Your safety strategy should be an integral part of your business strategy, not a standalone that can be put on the back burner when working well. It’s not a set of tactics, it’s what the company does, a shared vision and the plan to achieve safety excellence. When leadership loses its focus, the Workers’ Compensation program is without a compass and ultimately will flounder.

  2. Insurance rates are cyclical. While there are many positive trends impacting workers’ comp, including controlling opioids prescriptions, safer workplaces, and benign medical inflation that may keep rates low, there are some hovering clouds. For only the second time since 2003, the rate of nonfatal workplace injuries did not decrease, but held steady in 2018 according to the BLS. With relaxing ACA participation requirements, the rate of medically uninsured ticked higher in 2018, which could impact workers’ comp. The implications of medical marijuana and recreational marijuana on incident rates are troubling, Medicare Set-Asides can be complicated and unpredictable, and medical advances and longer lives have dramatically driven up the costs of catastrophic claims.

    Further, if insurers need to make up for losses in other commercial lines, they can look to Workers’ Compensation.

  3. Some industries are more vulnerable than others, including temporary staffing organizations, transportation, and retail. The BLS report spotlighted injury trends for the retail industry, where the rate of nonfatal workplace injuries increased from 3.3 per 100 workers in 2017 to 3.5 per 100 last year. Cases with days away from work also increased in retail, from 1 to 1.1 per 100 workers from 2017 to 2018.
  4. Seemingly minor missteps, such as delays in reporting or treatment, can escalate costs or lead to litigation. According to a study by the Hartford Financial Service Group, claims reported 7-14 days after the injury cost 18 percent more than those filed within a week of the injury. Wait 15-28 days and the costs jump 30 percent. Delaying medical treatment by even one day increases OSHA recordability by 60 percent.
  5. A lack of vigilance leads to a failure to identify potential high-cost claims early. The more information an adjuster has, the more efficiently a claim can be managed. Information on job description, co-morbidities, recovery at work options, prior workers’ comp claims, workplace disputes, and so on, are critical for expediting the process. Ignoring an employee who has multiple small injuries is a lost time injury waiting to happen. And failure to settle legacy claims means less scrutiny of the costs that are driving the claim. All are red flags to insurance companies about risk exposure.
  6. Insurance companies make mistakes. Payroll errors, incorrect Experience Modifiers, classification errors, over or under reserving claims, and failure to report subrogation recovery are just some of the common mistakes that lead to overcharging.
  7. The gig economy and classification of independent contractors is a hot legislative issue. California’s AB5, which goes into effect Jan. 1, 2020, changes the criteria used to classify employees and independent contractors, making it more difficult to classify an employee as an independent contractor. While this is a state law, California is often considered the bellwether for workplace protection laws. Labor groups and lawmakers will be watching closely to see how this evolves. In fact, in New York, a similar bill was introduced in the Senate in November.

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

Things you should know

Soap more effective than hand sanitizers in combatting flu

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

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

CMS Updates WCMSA Reference Guide

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

New drug tests in works for measuring medical marijuana impairment

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

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

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

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

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

Construction workers most likely to use opioids, cocaine: Study

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

Doctors wary of taking opioid patients: Study

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

Doctors trust patients, but test results show misuse

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

Registration is open for FMCSA drug and alcohol clearinghouse

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

Two studies address preventing work-related asthma

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

Sleep deprivation a growing problem: Study

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

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

MSHA reinstates final rule on pre-shift mine examinations

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

State News

California

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

Florida

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

Massachusetts

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

New York

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

Tennessee

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

Virginia

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Legal Corner

ADA
Adverse employment action cannot be motivated by associational disability claim

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

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

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

 

 

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

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

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

Jury awards Walmart employee $5.2 million

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

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

Workers’ Compensation

Safety citation for failure to require appropriate footwear upheld – California

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

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

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

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

Ruling on enforceability of unsigned document published – California

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

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

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

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

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

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

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

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

Court erred in approving lump sum PPD award – Illinois

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

Parking lot injury not compensable – Illinois

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

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

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

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

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

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

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

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

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

Volunteer not entitled to benefits – New York

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

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

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

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

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

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

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

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

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

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

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

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

Immigration status irrelevant to comp benefits – Pennsylvania

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

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

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

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

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

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

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

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

24/7 home health care not warranted – Virginia

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

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

Appellate court overturns Commission and denies care by spouse – Virginia

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

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

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

OSHA watch

New video explains inspection process

new video explains the OSHA inspection process.

New fact sheet on taxi driver safety

A new fact sheet focuses on keeping taxi drivers safe.

Input sought on safety training

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

Recent fines and awards

Florida

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

Georgia

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

Illinois

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

Massachusetts

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

Missouri

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

Nebraska

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

New York

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

For additional information.

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