Seven ways to improve Workplace Health Promotion Programs for all-sized employers

While workplace wellness programs began as a niche industry, they eventually morphed into comprehensive programs for worksites of all sizes. They’re touted as an effective business strategy to improve the health and productivity of workers, reduce health care costs, attract new employees, and retain existing ones.

Studies of wellness programs have produced conflicting results. Some find that the programs are a good investment with a 3 -1 return, while others have found they may change certain behaviors, but don’t improve job performance. Although the result vary, there’s a common thread – utilization did not live up to expectations.

A recent study, “Availability of and Participation in Workplace Health Promotion Programs (WHPP) by Sociodemographic, Occupation, and Work Organization Characteristics in US Workers” by The National Institute for Occupational Safety and Health (NIOSH) found that just under half of employees have access to them and among those who do have access, just about half utilize them. The study found that although approximately 47 percent of workers have access to WHPPs, only 58 percent of those with access actually participate. That’s roughly one in every four workers.

Occupations such as farming, fishing, forestry, food preparation and serving, construction, and extraction had the lowest availability of WHPP’s and workers in these occupations were also the least likely to participate in the programs. Workers who worked less than 20 hours a week, worked regular night shifts, were paid by the hour, or worked for temporary agencies were also less likely to participate. Researchers also identified barriers that keep workers from participating, including time constraints, lack of awareness, low supervisory support, and perceived need, but noted such barriers vary by industry.

The report concludes that employers should gauge workers’ priorities before designing and implementing WHPPs to customize programs to their employees’ specific needs and maximize participation. Another recent survey by Future Workplace and View sought to identify which wellness perks were most important to workers and how these perks impact productivity.

The results were surprising. It was not fitness facilities or technology-based health tools that topped the list, but air quality and natural light. Air quality and light were the biggest influencers of employee performance, happiness and wellbeing. Only 1 in 4 of the 1,600 employees surveyed say the air quality in their office is optimal for them to do their best work and nearly one-half say the quality of air makes them sleepy. In the number three spot was water quality, followed by comfortable temperatures, then acoustics and noise levels.

Just as people want to have a personalized consumer experience, employees want to be able to customize their work environment – control the temperature, mask noise, have natural light and so on. It’s not as impossible as it sounds. Cisco, for example, has managed the acoustic levels in their space by creating a floor plan without assigned seating that includes neighborhoods of workspaces designed specifically for employees collaborating in person, remotely, or those who choose to work alone. Similar arrangements can be made for temperature and light.

Here are seven steps employers can take to improve their results:

  1. Make WHPPs employee-centric. Complement the workplace health assessment with a survey of your employees to determine their workplace wellness priorities and tailor or modify the program accordingly.
  2. Integrate WHPPs with workplace safety programs. The synergistic possibilities of integrating common safety issues such as work schedules, workplace culture, ergonomics, substance exposures, noise levels, fatigue, and so on with the wellness program are significant.
  3. Personalize as much as possible. Employees expect the ability to personalize their workspace. More workers expect the company that employs them to take their well-being into account in all aspects of work.
  4. Recognize that workplace wellness is more than physical health. Studies show that most worksite health programs focus on physical activity, nutrition, and stress management. Environmental factors such as air, light, temperature, and acoustics are overlooked.
  5. Recognize the challenge of changing human behavior. Personal behaviors, including health and safety, are very difficult to change. They are embedded in routines and habits. It’s going to take time, effort, and reinforcement and there will be setbacks. Employees who are cynical and are distrustful of their employer will not be committed.
  6. Give employees a sense of ownership. Much like a culture of safety, employees must buy into a culture of wellness. Consider a wellness committee from a cross-section of departments and employees to provide input and drive participation.
  7. Monitor employee satisfaction. While employers often struggle with measuring the ROI of WHPPs, common factors include health care costs, absenteeism, disability claims, and workers’ comp claims. It’s important to incorporate “soft” measures such as satisfaction and morale.

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

Things you should know

NSC offers free toolkit to fight opioid abuse

The National Safety Council (NSC) is offering a free toolkit to help employers address the opioid crisis. The Opioids at Work Employer Toolkit addresses warning signs of opioid misuse, identifying employee impairment, strategies to help employers educate workers on opioid use risks, drug-related human resources policies, and how to support employees struggling with opioid misuse.

Workplaces most common site of mass shootings: Secret Service report

In its second Mass Attacks in Public Spaces report, the Secret Service examined 27 incidents in 18 states that involved harming three or more people. Most occurred in workplaces (20) and were “motivated by a personal grievance related to a workplace, domestic or other issue.”

Worker participation key to preventing safety accidents: CSB

The U.S. Chemical Safety Board (CSB) published a new safety digest discussing the importance of worker participation to avoid chemical mishaps. The report outlines how the shortage of worker engagement was a factor in various incidents examined by the CSB.

2018 guidelines more effective in preventing carpal tunnel: NIOSH

Previous studies showed that the 2001 American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Value (TLV) for Hand Activity was not sufficiently protective for workers at risk of carpal tunnel syndrome (CTS) and led to a revision of the TLV and Action Limit in 2018. A new study compares the effectiveness of the 2018 and 2001 guidelines, concluding that the 2018 revision of the TLV better protects workers from CTS.

NIOSH notes that many workers are exposed to forceful repetitive hand activity above the guidelines and urges compliance with the updated guidelines.

First aid provisions in workers’ compensation statutes and regulations: NCCI

The National Council on Compensation Insurance, Inc. (NCCI) has compiled state statutes and regulations related to First Aid in Workers’ Comp. The document does not include review or analysis of the statute or regulation, of relevant caselaw, or other guidance and is subject to change.

Mandatory treatment guidelines may lead to fewer back surgeries

States with mandatory use of medical treatment guidelines in utilization review, reimbursement and dispute resolution may lead to lower rates of lumbar decompression surgery among workers with low back pain, according to a new report by the Workers Compensation Research Institute.

The 27 states in the study include Arkansas, California, Connecticut, Delaware, 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.

Engineered-stone fabrication workers at risk of severe lung disease

Exposure to silica dust from cutting and grinding engineered stone countertops has caused severe lung disease in workers in California and three other states. The CDC released information on cases in Washington, California, Colorado and Texas in an article published in the agency’s Morbidity and Mortality Weekly Report. According to the article, 18 cases of silicosis were identified in the four states from 2017 – 2019. Two of those workers died from the illness.

Campbell Institute offers a guide on how to get started with leading indicators

An Implementation Guide to Leading Indicators is intended to help employers initiate the process when implementing leading indicators for the first time.

Annual wind energy safety campaign focuses on hands

The American Wind Energy Association will offer several free resources in October as part of its annual month-long safety awareness campaign aimed at helping protect renewable energy workers from on-the-job injuries. The theme of the 2019 campaign is Take a Hand in Safety: Protect These Tools.

NIOSH releases international travel planner for small businesses

The 36-page travel planner is a new resource intended to help small-business owners ensure the health and safety of employees who travel internationally.

State News

California

  • Governor Newsom has signed two bills relating to workers’ comp. A.B. 1804 will require the immediate reporting of serious occupational injury, illness, or death to the Department of Industrial Relations’ Division of Occupational Safety and Health. A.B. 1805, modifies the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations, excluding those for medical observation or diagnostic testing, and explicitly including the loss of an eye as a qualifying injury for the new reporting requirements. Both bills will take effect Jan. 1, 2020.
  • Legislators approved a landmark bill that requires companies like Uber and Lyft to treat contract workers as employees. The Governor is expected to sign it after it goes through the State Assembly. Uber, Lyft, and DoorDash have vowed to fight it.
  • Insurance Commissioner Ricardo Lara approved the Workers’ Compensation Insurance Rating Bureau’s annual regulatory filing that will, among other things, lower the threshold for experience rating.
  • The Division of Workers’ Compensation (DWC) announced that the temporary total disability rate will increase 3.8% next year, not more than 6% as the agency previously announced.
  • The DWC has issued an order modifying its evidence-based treatment guidelines for work-related hip and groin disorders. Effective October 7, 2019, the changes involved two addendums to the workers’ compensation medical treatment utilization schedule and incorporate the American College of Occupational and Environmental Medicine’s most recent hip and groin disorders guidelines.
  • The DWC launched an updated free online education course for physicians treating patients in the workers’ compensation system.

Illinois

  • Beginning July 1, 2020, hotels and casinos will be required to have anti-sexual harassment policies that include, for certain workers, access to a safety button or notification device that alerts security staff under the newly created Hotel and Casino Employee Safety Act.
  • Gov. J.B. Pritzker signed legislation requiring freight trains operating in the state to have at least two crew members, challenging the Federal Railroad Administration’s recent effort to prevent states from regulating train crew sizes. Scheduled to go into effect January 1, 2020, S.B.24 is to be known as Public Act 101-0294.

Minnesota

  • Department of Labor and Industry has posted new workers’ compensation medical fee schedules that took effect Oct. 1. The schedules update reimbursement for ambulatory surgery centers, hospital inpatient, and outpatient services, and provide new resource-based relative values for providers.
  • The workplace fatality rate in Minnesota grew to 3.5 per 100,000 full-time workers in 2017, the highest rate in at least a decade, according to new data from the Safety Council. Almost one in three fatal workplace injuries involved driving a vehicle.

North Carolina

  • The Industrial Commission announced that the maximum for temporary and permanent total disability will go from its current level of $1,028 to $1,066, starting Jan. 1.

Pennsylvania

Tennessee

  • New rules for medical payments went into effect September 10, 2019. Not only are reimbursement rates increasing for providers and hospitals, but the conversion factor may now “float” or follow Medicare’s changes, rather than being fixed.
  • The NCCI is recommending a 9.5% decrease in loss costs for the voluntary market in 2020, a figure that’s half of what the rating organization recommended for this year.

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

Legal Corner

ADA

Employer can require reassessment of restrictions

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

FMLA

Employer can ask employee to explain misconduct while on FMLA leave

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

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

Workers’ Compensation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralysis from car accident not compensable – North Carolina

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

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

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

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

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

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

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

Bank teller’s carpal tunnel not compensable – Pennsylvania

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

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

Violation of restraint policy does not nix benefits – Tennessee

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

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

Psychological injuries from assault compensable – Tennessee

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

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

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

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

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

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

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

Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

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

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

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

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

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

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

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

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

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

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

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

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

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

Tort suit against subcontractor can proceed – Florida

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

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

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

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

Supreme Court provides guidance on PTSD provisions – Minnesota

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

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

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

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

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

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

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

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

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

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

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

Failure to complete application sufficient for denial – New York

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

Heart injury hours after accident compensable – North Carolina

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

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

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

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

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

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

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

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

Continuing denial of opioids affirmed – Pennsylvania

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

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

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

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

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

OSHA watch

FY 2018 Enforcement summary released

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

Comments on updating Lockout/Tagout standard due August 18

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

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

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

Whistleblower website updated

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

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

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

Reminder: Hurricane preparedness and response

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

Cal/OSHA emergency wildfire smoke regulation takes effect

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

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

Recent fines and awards

California

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

Florida

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

Georgia

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

Illinois

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

Missouri

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

New York

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

North Carolina

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

Pennsylvania

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

Wisconsin

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

For additional information.

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

12 mistakes employers make when an OSHA inspector knocks unexpectedly

Even well-prepared employers can panic when an OSHA inspector arrives unexpectedly at the door. Why are they here and are we really prepared?

While the chances of an inspection are small (there are about 8,000,000 workplaces and OSHA and its State Plans average about 73,000 annually), advance notice is rare. In fact, Compliance Safety & Health Officers (CSHO) are prohibited by law from providing employers with advanced notice of pending inspections, with limited exceptions (see p. 3-3 of field operations manual).

Employers who are ill-prepared for an inspection and make bad decisions during an inspection face unwelcome and costly fines. Even well-prepared employers find it difficult to escape an inspection without a citation – there is a 75% chance that at least one violation will be found.

Here are 12 mistakes commonly made by employers:

  1. Refuse to let OSHA enter the worksite. While most inspections are surprises, many experts and former inspectors advise against requiring a warrant. This is likely to bring enhanced scrutiny and create an adversarial tone. A cooperative attitude is important; however, this is a good time to negotiate the limit and scope of the inspection.
  2. Fail to consider the personality of the employee designated to meet with and accompany the inspector. While it’s critical the employee be knowledgeable and intimately familiar with the operations and safety policies of the business, personality and attitude play a major role. Someone who is defensive, arrogant, or a know-it-all is likely to irritate the CSHO. The inspector’s report includes a place to note lack of cooperation. And don’t designate someone who loves to talk and tell how wonderful the company is. It’s going to fall on deaf ears and they probably will volunteer too much information. Best to designate someone who is polite, professional, can stay focused, and who is confident and willing to ask questions.
  3. Don’t have a backup for the designated employee. Inspectors will wait a “reasonable” amount of time – usually a half hour to an hour. While that might be a good opportunity to correct some small hazards and tidy up housekeeping, delaying the inspection will be noted on the form and it’s unlikely anything you do in that time is going to make a significant difference.
  4. Fail to limit the scope of the inspection. This is perhaps most important. Employers have a right to know the purpose of the inspection and to have a “reasonable inspection” at a “reasonable time.” Employers should insist on an opening conference when the CSHO explains the reason for the inspection and the employer can negotiate the scope. It’s also an opportunity to ask questions and to try to establish ground rules about how the inspection will proceed, including interviews, collection of documents, and the physical access to the facility.

    Some inspections, such as those under the Site-Specific Targeting Enforcement Program, can be wall-to-wall but most unprogrammed inspections can be limited. If the inspection was prompted by an employee complaint, the employer has a right to see the complaint and limit the inspection to related areas. If the CSHO is there to investigate an incident, take the most direct route to the site of the incident. Minimize exposure to the rest of the facility. Everything inspectors see is fair game for citations, such a missing handrails, poor housekeeping, improper signage, fire extinguishers, etc. If an officer tries to do a wall-to-wall inspection when there is a specific reason for the inspection, the employer should push back.

  5. Don’t know the criteria for emphasis program or compliance directive inspections. If there is a programmed inspection under an emphasis program or compliance directive, an employer can refuse, if they know they don’t fit the criteria.
  6. Don’t replicate the photos, videos, and notes the inspector makes. It’s important to escort the CSHO at all times and to mirror the actions of the inspector during the walkthrough. Take the same photos, videos, notes, measurements, sampling etc. so you have a clear record of what they captured. OSHA has a six-month statute of limitations to issue citations.
  7. Admit to violations. There may be violations pointed out during a walk through. For example, if an inspector points out an unguarded machine, say you will address it, but don’t admit the violation or try to go into a lengthy explanation of why it is not guarded.
  8. Don’t insist that document requests be in writing. At the opening conference, it’s best to agree that document requests, except OSHA Recordkeeping forms, be made in writing (it can be handwritten) so that there is no confusion over what documents are being requested and so that the employer is not cited for failure to produce a document it did not believe was requested. It is important to remember that the employer has no duty to produce certain documents (e.g., post-accident investigations, insurance audits, consultant reports, employee personnel information) if a regulation does not require such production. Any documents produced can be utilized to issue citations. If you don’t have the document, say so. Don’t rush to produce a new document.

    While not a comprehensive list, long-time OSHA employee and Area Director John Newquist recently published the “Scary 13” – documents employers can’t produce during an inspection – in The National Safety Council’s June Safety Health magazine.

  9. Don’t protect their trade secrets and business confidential information from disclosure to third parties. This is an employer’s right, but it is critical to keep a record and identify the documents as confidential.
  10. Don’t sit in on management interviews. A supervisor’s comments are imputed to the employer and, for this reason, employers have the right to and should be present and participate in interviews of management, regardless of whether the manager wants the representative there. That right does not exist with non-management employees, but it’s important for employees to know their rights about interviews and that they will not suffer adverse employment actions. While it’s important to be careful not to coerce, intimidate, or influence, employers can prepare employees for interviews. Also, the employer can request that “on floor” interviews be limited to five-minutes on production and processes. Employers should attempt to schedule more extensive interviews about training, background, etc. that should take place in a conference room with a table and chairs, but no white boards or documents present.
  11. Consider only the cost of the penalty. Employers have the critical right to contest OSHA’s citations, but some employers want to move on quickly, and consider only the monetary amount when deciding whether to contest, particularly when the cost is low. A recent webinar, Prepare for and Manage an OSHA Inspection by the Conn Maciel Carey law group, notes that there are several goals an employer should consider before accepting a citation, as well as strategies to reduce the impact. Accepting a citation can open the door to future, more costly repeat violations ($132,598), impact civil wrongful death or personal injury actions, affect bidding, harm customer and employee relationships, increase possibilities of being placed in the Severe Violators Enforcement Program, and affect insurance costs and coverage.
  12. Don’t immediately correct hazards, when possible. The closing conference usually takes place one to six weeks after the inspection. This is a good time to demonstrate cooperation by showing that hazards identified during the inspection have been corrected or abated.

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

Legal Corner

Workers’ Compensation 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Insurer must pay for injuries despite misinformation in policy – Georgia

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

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

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

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

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

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

Employee can sue Canada – Massachusetts

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

Worker who resigned after injury can collect unemployment – Minnesota

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

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

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

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

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

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

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

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

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

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

Failure to mention side business not fraud – New York

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

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

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

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

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

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

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

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

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

Six studies: what does and doesn’t work to improve claims outcomes

Recently, there has been a plethora of studies related to claim outcomes in workers’ comp and group health, several with surprising conclusions. Here are six of them:

Workers’ Compensation Medical Prices and Outcomes of Injured Workers – Workers Compensation Research Institute (WCRI)

Study: This study addresses a long-standing policy debate about the role of workers’ compensation prices in outcomes of injured workers; specifically, what happens to outcomes of injured workers when prices increase or decrease. Survey data covered workers’ experiences across 14 states, and claims data provided information from across 30 states. It focused on the pricing of common office visits, which affect most injured workers, rather than specialty medical treatment prices that wouldn’t apply to all injured workers.

When examining the link between workers’ compensation prices and outcomes, the study focused on five specific outcomes:

  • Access to care
  • Nature of medical care
  • Change in physical health and functioning
  • Return to work
  • Temporary disability duration

Findings: There is a strong link between workers’ compensation prices and the first two outcomes – access to care and nature of medical care. For example, when workers’ compensation prices were relatively higher, workers were significantly more likely to receive physical therapy within the first six weeks of being injured and went to more office visits for evaluation and management services.

However, this did not have much of an impact on the last three outcomes. “While prices are related to measures of access to medical care and the nature of medical care provided, changes in these measures when prices increase are not material enough to result in improved recovery and faster return to work,” according to the report.

Takeaway: Factors other than price are important in shaping different outcomes. “Future studies may need to focus on other system features that may explain large differences in outcomes across states.”


Health Insurance and Outcomes of Injured Workers – WCRI

Study: The study provides new empirical evidence about workers with health insurance and what that means for workers after a work-related injury. Researchers surveyed injured workers in 15 states.

Findings: Injured workers with health benefits showed a 2.5% higher return-to-work and returned to substantial work on average one week faster than workers without health insurance. They received evaluation and management services more quickly, had higher rates of satisfaction with primary providers, and had lower rates of hiring an attorney for comp claims. However, there was little difference in the likelihood of workers reporting problems obtaining medical services, or in the kind of care received.

Takeaway: Workers’ comp historically was in one silo, with health programs in another. If you are still organized in traditional silos, it’s time to change. Smart companies have adopted a holistic approach to employee health to drive down costs, improve productivity, boost the bottom line, and help employees enjoy better health.


Effectiveness of a no-cost-to-workers, slip-resistant footwear program for reducing slipping-related injuries in food service workers: a cluster randomized trial – Scandinavian Journal of Work, Environment & Health

Study: This study evaluated the effectiveness of a no-cost-to-workers, slip-resistant footwear (SRF) program in preventing workers’ compensation injury claims caused by slipping on wet or greasy floors.Laboratory tests have shown that slip-resistant shoes designed with a special tread helped prevent slipping, but studies in actual workplaces were lacking. The study population was a dynamic cohort of food service workers from 226 school districts’ kindergarten through 12th-grade food service operations.

Findings: Food services operations where workers received free highly slip-resistant shoes showed a large reduction in workers’ compensation claims for slip injuries compared to food service operations where workers did not receive the shoes. School districts filed 67% fewer claims for slip injuries after being provided the slip-resistant shoes, compared to no reduction in claims for slip injuries at the school districts that did not receive the shoes.

Takeaway: Slips, trips, and falls are the third-leading cause of U.S. non-fatal work-related injuries involving days away from work across all industries. Almost 80% of these injuries are on the same level, and these injuries are estimated to cost nearly $13 billion in direct workers’ compensation-related costs annually. These results show that providing highly rated slip-resistant shoes can help reduce claims for slip injuries.


Opioids, Pain and Absence: The Productivity Implications of Substance Abuse Among US Workers – Integrated Benefits Institute

Study: The Oakland, CA-based research organization surveyed by phone 84,579 American workers over 18 years old between 2015 and 2017, with 74% of them reporting to be working full-time. The goal of the study was to examine productivity and days missed from work due to prescription drug use among workers.

Findings:

  • 33% of workers reported taking prescription painkillers.
  • Less than 1% reported any heroin use.
  • Rates of alcohol abuse and dependence exceed the problematic use of pain relievers and other prescription medications at 7% of the workforce interviewed.
  • Use of cocaine or methamphetamine was relatively uncommon, at less than 3% and 1%, respectively.
  • Excess work absences associated with pain relievers were greater than excess absences associated with any other substance. On average, non-problematic use of pain relievers was associated with 0.8 days of excess absences per month compared with non-users. The problematic use of pain relievers was associated with 2.0 absences, or 1.2 excess days per month compared with non-users.
  • Assuming a 20-day work month, the use of pain relievers was associated with a loss of about 1.3% of the monthly labor capacity of 1,000 workers. The non-problematic use of pain relievers accounted for 96% of those losses.

Takeaway: Managing pain is a major challenge in workers’ comp. The numbers are alarmingly high, suggesting a continued problem of over-prescribing and a workforce grappling with pain issues. Although a small percentage reported abuse of pain relievers or dependence, experts postulate that “problematic behaviors” such as addiction and dependence are likely to follow. Employers should be proactive in educating employees on the risk factors and nonpharmacologic approaches to pain and work with occupational medicine providers to help their employees prevent pain management from becoming abuse and improve productivity.


Association of Opioid, Anti-depressant, and Benzodiazepines with Workers’ Compensation Cost: A Cohort Study – Accident Fund (AF) Group

Study: This analysis evaluated the impact of benzodiazepines and antidepressants in combination with opioids on workers’ compensation claim cost and closure rates.

Findings: Concurrent treatment of chronic pain, depression, and/or anxiety and occupational injuries is associated with large increases in total workers’ compensation claim cost and delayed return to work. The slowest claim closure rate occurred among workers with prescriptions for all three types of medications (58.3%), followed by claims with both opioid and antidepressant (64.8%) prescriptions. The group without any medications had the highest closure rate (91.8%), followed by the group with only opioid (89.1%) prescriptions.

Even when controlling for age, chronic pain, medical complexity, and claim development (years), antidepressant claims, to a greater degree, were more likely to remain open at the end of the three-year study period.

Takeaway: The presence of anti-depressant medications on a claim is an indicator of a potentially costly claim. Early intervention is needed to minimize the impact of behavioral issues and psychotropic medications on workers’ compensation claim outcomes.


Integrated Physical Medicine at Employer-Sponsored Health Clinics Improves Quality of Care at Reduced Cost – Center for Primary Care and Outcomes Research, Stanford University, Crossover Health

 

Study: The aim of the study was to evaluate clinical and economic outcomes associated with integrating physical medicine in employer-sponsored clinics.

Findings: Integrating physical medicine in employer-sponsored clinics decreased wait times to access these services to 7 days (2 to 4x faster than in the community). Patients receiving care in employer-sponsored clinics experienced marked improvements in fear of pain avoidance behaviors (a strong predictor of disability) and functional status in eight fewer visits than in the community resulting in $472 to $630 savings/patient episode. Noncancer patients received 1/10th the opioid prescriptions in employer-sponsored clinics compared with the community (2.8% vs 20%). Patients were highly likely to recommend integrated employer-sponsored care (Net Promoter Score = 84.7).

Takeaway: Musculoskeletal complaints represent the second largest cause of short-term or temporary work disability, and employers bear a disproportionate share of these costs, including approximately 290 million lost workdays annually. While the study focuses on how larger employers can strengthen onsite or near-site clinics, it notes employers should consider policies to reduce barriers to accessing physical medicine services such as direct patient access, sufficient availability of appointments, and benefit designs that incentivize use of physical medicine services before elective imaging and specialist visits.

A strategy of early access to physical therapy has been associated with a 36% improvement in patient outcomes, 52% less imaging, 56% fewer spinal injections, 59% fewer lumbar surgeries, and 62% less opioid use.

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Things you should know

‘Safety at Heights’: ISEA launches campaign on fall protection, dropped objects prevention

ISEA’s SafetyAtHeights.org website provides educational resources for employers and workers, including:

  • Facts about dropped objects and workplace deaths and injuries
  • A list of job hazards that workers and employers should be aware of
  • Downloadable PDFs of ISEA and ANSI safety standards
  • Links to more than a dozen online safety resources

Proposed rule to amend trucker hours-of-service regs slated for publication in June

A proposed rule intended to add flexibility to the Federal Motor Carrier Safety Administration hours-of-service regulations for commercial truck drivers will be published in early June, according to a Department of Transportation regulatory update released in May.

ISHN magazine publishes 2019 Readers’ Choice Award winners for best PPE and safety equipment products

For the seventh year in a row, the Industrial Safety and Hygiene News published its Readers’ Choice Awards for the best occupational health and safety products from 2019.

Stressed out: Survey shows almost half of workers have cried at work

Work-related stress has driven nearly half of full-time employees in the U.S.to tears, results of a recent survey, 2019 Behavioral Health Report, show. Researchers from Ginger, an on-demand behavioral health services provider, assessed more than 1200 workers’ experiences with behavioral health and their employer-provided benefits. 48% of survey respondents said on-the-job stress has made them cry at work. In addition, 83% said they experienced stress at work at least once a week.

Among workers younger than 40, 45% reported “extreme stress” – defined as experiencing stress on a daily basis. Women were more likely to cry at work, but 36% of men acknowledged crying at work because of stress. Generation Z and millennials are more likely to miss work because of stress.

Reattaching to work before clocking in may improve engagement, health: study

Visualizing and planning for your workday may lead to better engagement and well-being, results of a recent study indicate.

Food truck safety resources spotlight propane hazards

WorkSafeBC has published a safety bulletin and blog post intended to help food truck owners and workers avoid hazards associated with propane tanks.

State News

California

  • Findings from The Workers Compensation Research Institute (WCRI) CompScope Benchmarks for California, 19th Edition, showed higher litigation expenses than other states. Total costs per all paid claims were higher than most study states for 2015 claims with an average of 36 months of experience, mainly driven by a higher percentage of claims with more than seven days of lost time.

Florida

  • Florida Gov. DeSantis signed into law a bill that allows firefighters diagnosed with any of 21 types of cancer to receive disability and death benefits outside of the workers’ compensation system. Senate Bill 426 will allow firefighters to receive medical treatment for their condition with no out-of-pocket expenses.
  • The WCRI CompScope Benchmarks for Florida, 19th Edition, shows that two 2016 Supreme Court decisions continue to affect the workers compensation system, but despite an uptick in indemnity benefits per claim, the comp system costs are in line with other states. The cost driver for the increase in indemnity benefits was a jump in lump-sum settlement payments per claim.

Illinois

  • The Workers’ Compensation Commission launched a new case docket website, which was built to work on mobile devices and tablets.
  • The Governor has signed into law Senate Bill 1596, which will allow tort claims to be filed after the state’s occupational-disease statute of limitation expires.
  • The WCRI CompScope Benchmarks for Illinois, 19th Edition, shows the average total cost of a workers’ compensation claim remained higher than most states, driven by high attorney involvement and high medical-legal costs. The report also shows more lump-sum settlements than most other states, and the share of claims paid in lump sums continues to rise every year.

Indiana

  • A new law, H.B. 1341, increasing the maximum penalty to $132,598 from $70,000 for each worker death resulting from an employer knowingly violating safety regulations, goes into effect July 1.

Massachusetts

  • Two key deadlines critical to the implementation of the Massachusetts Paid Family Medical Leave law (PFML) have been extended. Employers have until June 30, 2019 to provide written notice to covered individuals of their rights and obligations under the PFML. Also, businesses will now have until September 20, 2019 to file an application for a private plan exemption.
  • Massachusetts’ workers’ compensation fraud investigators in 2018 referred 256 cases for prosecution, the most ever in a single year, according to a local news station.

Michigan

  • Medical marijuana is now available to patients immediately after receiving online approval. The approval email may be used as a temporary substitute for a valid registry card in order to obtain their medication.
  • Michigan’s attorney general launched a new enforcement unit to prosecute worker misclassification and wage theft by employers.
  • Michigan State University College of Human Medicine has launched a campaignintended to raise awareness of work-related asthma.

Minnesota

  • The Workers’ Compensation Division released a draft of the latest implementation guideline for its electronic data interchange, which is expected to be mandated in August 2020.
  • Minneapolis’ Sick and Safe Ordinance extends to any employee who performs at least 80 hours of work per benefit year in the City of Minneapolis, even if his or her employer is not located within the city’s limits, the Minnesota Court of Appeals has held in Minnesota Chamber of Commerce v. Minneapolis.

Missouri

  • The Department of Labor and Industrial Relations Division of Workers’ Compensation (DWC) continues to expand the use of Box Account, a virtual mailbox. The Attorney General’s Labor Unit recently began using Box to file Answers to Workers’ Compensation Claims filed by injured state employees.

New York

  • New York City has enacted a law prohibiting New York City employers from requiring prospective employees to submit to testing for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. The new law, the first of its kind in the United States, became effective on May 10, 2019.

Pennsylvania

  • The WCRI CompScope Benchmarks for Pennsylvania, 19th Edition, showed the average total cost of a workers’ compensation claim is among the highest of 18 states studied, with litigation costs a key driver of higher overall benefit delivery expenses.

Tennessee

  • A new amendment to Tennessee’s Healthy Workplace Act may offer employers protection from lawsuits for mental anguish. The new amendment became effective April 23rd when Governor Bill Lee signed H.B.856 into law expanding coverage to include private employers.

Wisconsin

  • By executive order, the Governor has authorized the creation of a joint enforcement task force on payroll fraud and worker misclassification. The DWD’s Worker Classification website is available here.

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

Things you should know

CDC: Half of workplaces offer health/wellness programs

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

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

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

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

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

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

Study: Energy drinks take toll on heart health

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


State News

California

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

Georgia

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

Illinois

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

Massachusetts

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

Michigan

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

Minnesota

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

Missouri

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

New York

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

Tennessee

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

Virginia

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


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