Legal Corner

Workers’ Compensation

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

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

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

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

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

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

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

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

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

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

Going and Coming rule clarified – Michigan

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

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

High court denies benefits for school teacher – Missouri

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

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

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

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

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

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

Drivers for Postmates are employees – New York

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

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

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

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

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

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

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

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

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

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

Spider bite compensable – Virginia

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

Failure to wear seatbelt nixes compensation – Virginia

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

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

 

Things you should know

Proposed rule could mean stiff Medicare secondary payer penalties for insurers

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

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

NLRB releases new definition of “joint employer”

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

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

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

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

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

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

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

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

New video for tower workers: safety climb systems

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

State News

California

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

Illinois

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

New York

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

Wisconsin

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

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

Legal Corner

ADA

Recent EEOC settlements

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

Workers’ Compensation

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

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

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

Positive alcohol test doesn’t nix benefits – Florida

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

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

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

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

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

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

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

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

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

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

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

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

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

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

Comp exemption for North Dakota businesses upheld – Minnesota

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

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

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

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

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

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

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

NFL player not a seasonal worker – Pennsylvania

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

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

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

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

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

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

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

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

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

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

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

OSHA watch

NEP to reduce or eliminate worker exposure to silica revised

Effective Feb. 4, the National Emphasis Program (NEP) on respirable crystalline silica for general industry, maritime and construction to “identify and reduce or eliminate” silica-related hazards was revised.

Significant changes include:

  • Enforcement of the standards for RCS, promulgated in 2016. One standard covers general industry and maritime, and the other covers construction. Both standards set a permissible exposure limit (PEL) for RCS of 50 micrograms per cubic meter (µg/m3) as an 8-hour time-weighted average (TWA). The former TWA PELs for respirable quartz silica were calculated based on silica content and were approximately equivalent to 100 µg/m3 for general industry and 250 µg/m3 for construction and shipyards (81 FR at 16294, March 25, 2016).
  • Updated list of target industries, listed by North American Industry Classification System (NAICS) codes.
  • For inspection procedures, compliance safety and health officers (CSHOs) are referred to current enforcement guidance for the Respirable Crystalline Silica Standards.
  • State Plan participation in this NEP has been made mandatory.
  • Area and Regional Offices shall comply with this NEP, but they are not required to develop and implement corresponding Local Emphasis Programs (LEPs) or Regional Emphasis Programs (REPs).
  • Area Offices will conduct outreach programs three months prior to initiating NEP-related RCS inspections.
  • Area Offices are no longer required to send abatement verification to the National Office.

Low hazards industry list updated

The list of low-hazard industries used to determine whether small-business employers are exempt from programmed safety inspections has been updated. Employers in these industries that employ 10 or fewer employees are exempt from programmed safety inspections. The appropriations language contains exceptions for inspections stemming from fatalities, the hospitalizations of two or more employees, imminent danger situations, employee complaints, and health hazards, among other situations.

National Emphasis Program (NEP) on Amputation extended to manufacturing industries in Pennsylvania, Delaware and West Virginia

The NEP on amputations will target industrial and manufacturing workplaces in Pennsylvania, Delaware, and West Virginia where it’s been determined that unguarded or improperly guarded machinery and equipment played a role in employee injuries. A concerted education and prevention effort will also be made to raise awareness. NEP enforcement activities will begin after March 10, 2020, and will remain in effect until the program is cancelled.

New hazard bulletin: grease traps

The new bulletin provides information on how to properly cover grease traps to prevent workers from tripping or falling into them.

Technical corrections and amendments to 27 standards

According to a final rule published in the Feb. 18 Federal Register, the corrections are to 29 CFR 1904 (recording and reporting occupational injuries and illnesses), 1910 (general industry), 1915 and 1918 (maritime), and 1926 (construction).

National stand-up for grain safety week

The National Stand-Up for Grain Safety Week will take place April 13-20.

New webpage to observe 50th anniversary

A new webpage marks the 50th anniversary of the Occupational Safety and Health Act of 1970. Visit www.osha.gov/osha50 to find 50th anniversary events.

Cal OSHA Guidance on requirements to protect health care workers from 2019 novel coronavirus

The guidance covers the safety requirements when providing care for suspected or confirmed patients of the respiratory disease or when handling pathogens in laboratory settings in California.

Cal OSHA – Employee access to employer’s Injury and Illness Prevention Plan

The Occupational Safety and Health Standards Board (“Standards Board”) approved a rule allowing employee access to their employer’s Injury and Illness Prevention Plan within five days of a request, effective January 1, 2021.

 

Recent fines and awards

Florida

  • The U.S. District Court for the Middle District, Fort Myers Division, sentenced Stalin Rene Barahona, former owner of the now-dissolved SB Framing Services Inc. in Naples, to 30 days in prison. Barahona pleaded guilty to one count of willfully violating federal fall protection standards.

Georgia

  • Pearson Farms LLC was cited for safety violations after an employee suffered fatal injuries at the farm’s post-harvest operations facility in Fort Valley. The employee, who was performing maintenance on a conveyor system, was caught between the load on a forklift and a metal railing. The farm faces $128,004 in penalties.
  • Garick LLC, operating as Smith Garden Products, was cited for exposing employees to safety hazards at the Cumming facility. The manufacturer of specialty mulch products faces $148,867 in penalties. The inspection was conducted in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

Michigan

  • Dearborn Heights School District violated whistleblower statutes by unjustly disciplining, publicly discrediting, and terminating an employee who reported unsafe working conditions to federal and state agencies. The school district was ordered to reinstate the employee and pay a total of $102,905.78 in back wages, damages and other compensation.

Missouri

  • Royal Oak Enterprises was cited for exposing employees to multiple safety and health hazards at company facilities in Branson and Summersville. The charcoal manufacturer faces $339,702 in penalties.

New York

  • Nonni’s Foods LLC was cited for exposing employees to falls and other hazards at the Ferndale facility. Inspected after an employee fell and was hospitalized, inspectors discovered that the employer instructed employees to retrieve stored material by standing on the forks of a forklift that elevated them to a storage area atop a break room, which did not have guardrails. The manufacturer of premium cookies faces $221,257 in penalties.

Pennsylvania

  • Cleveland Brothers Inc., doing business as CB HYMAC, was cited for exposing workers to hexavalent chromium fumes and other safety hazards at the company’s shop in Camp Hill. The company, which provides hydraulic service and repair, machining and chroming services, was cited for one willful violation and 18 serious and two other-than-serious citations, totaling $280,874 in penalties.
  • CLF Construction Inc. and Toll Brothers Inc. were cited for exposing employees to fall hazards after a CLF employee suffered fatal injuries in a fall at a worksite in Media. Proposed penalties are $170,560 for Philadelphia-based subcontractor CLF Construction, and $74,217 for Horsham-based general contractor Toll Brothers.

For additional information.

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

Study: Safety management in the construction industry 2020

SourceDodge Data & Analytics, 2020

Findings: The report examines safety management in construction. Key findings include:

  • Jobsite workers and supervisors dominate the four factors selected by the highest percentage of contractors as essential aspects of a world-class safety program: jobsite worker involvement (84%), strong safety leadership abilities in supervisors (83%), regular safety meetings with jobsite workers and supervisors (82%) and ongoing access to safety training for supervisors and jobsite workers (77%).
  • The most popular safety policies are the site-specific ones, including creating site-specific safety and health plans and training programs for all employees and subcontractors. However, there is room for wider adoption of these measures, especially among small contractors (fewer than 20 employees).
  • While most contractors (66% or more) encourage workers to react to and report hazards onsite, far fewer ask workers for input on safety conditions (50%) or involve workers in safety planning (39%).
  • Toolbox talks remain the most effective way to communicate safety messages and provide information on tools, practices, and materials.
  • Contractors still expect to increase their use of online training in the next few years, but, surprisingly, a lower percentage reported using it than in 2017.

Takeaway: While involving jobsite worksite workers has topped the list of essential aspects of a world-class safety program since 2015, this report shows that strong safety leadership by supervisors and regular safety meetings between jobsite workers and supervisors are also essential. The study reveals more opportunities to engage jobsite workers as well as opportunities to strengthen the training of supervisors.

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

Study: Experiences of healthcare in Australia’s Workers’ Compensation schemes

SourceJournal of Occupational and Environmental Medicine, January 2020

Findings: The study aimed to determine how stressful healthcare provider interactions impacted the return to work. The findings were consistent with previous studies – “stressful healthcare provider interactions have a negative association with return to work.” Understanding and respect from providers led to a more trusting relationship and faster return to work, whereas lack of understanding and poor communication were associated with negative outcomes.

Takeaway: Don’t underestimate the value of creating and maintaining strong injured worker/doctor relationships that are based on trust, compassion, and understanding. “…Experiencing stressful interactions with providers was significantly associated with 33 percent lower odds of return to work.”

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

NSC report addresses how existing technologies can save lives and reduce serious injuries

Although workplace injuries are trending down, workplace fatalities are rising. While a fatality may seem like an impossibility at your workplace, 5,250 workers died on the job in 2018 – on average, more than 100 a week or more than 14 deaths every day. The worst part is that most of these deaths were preventable. Not only is a fatality a tragedy, but it also can have a long-lasting effect on the emotional health, productivity, and attitude of the workforce.

In its first Work to Zero research report, Safety Technology 2020: Mapping Technology Solutions for Reducing Serious Injuries and Fatalities in the Workplace, the National Safety Council (NSC) looks at 18 different non-roadway, hazardous situations in which workers are most likely to die and provides anywhere from five to eight potential technology solutions for each situation.

The top four hazardous situations and corresponding technologies identified in the report include:

  • Work at height: This includes deaths resulting from falling to a lower level, falling objects, and injury from the sudden arrest of a lifeline. Contributing to these risks are worker behavioral failures, leadership failure, and scaffolding/platform failure. Top technology solutions include mobile anchor points, aerial lifts and platforms, and self-retracting lines.
  • Workplace violence: This includes deaths resulting from intentional physical violence to a colleague, weapon violence, and violence due to robbery. Contributing to these risks are lack of workplace awareness, lack of training or supervision, and lack of security measures. Top technology solutions include real-time response management mobile apps, video cameras, and wearable or mobile-app based panic buttons.
  • Repair and maintenance: This includes deaths resulting from machine energization, being struck by machinery, or being entangled in machinery. Contributing to these risks are lack of training or supervision, fatigue, and machinery malfunction. Top technology solutions include machinery cutoff light curtains, power management systems, and permit to work technologies.
  • Construction and Installation: This includes falls to a lower level, control of energy, and electrocution. Contributing to these risks are leadership failure, lack of training, and lack of workplace awareness. Top technology solutions are VR and digital training, proximity sensors, and fall protection kits.

Other hazardous situations addressed in the report are logging equipment operation, tending a retail establishment, electrical work, emergency response, vehicle-pedestrian interactions, process safety operations, cleaning, loading and unloading, confined space entry, inspections, heavy equipment operation, excavation, machinery operation, and hot work.

Download report.

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

Study: Demand conditions and worker safety: evidence from price shocks in mining

SourceYale Insights

Findings: The study examines the relationship between demand and safety. While it’s often speculated that higher demand could lead to improved profits and more investment in safety, the authors found that it incentivized firms to focus on production over safety. “In economic terms, the opportunity cost of focusing on safety – that is, the potential profits lost – goes up when demand is higher. And that creates a second force counteracting the greater ability to invest in safety.”

The research is based on the mineral mining industry in the US, where accident reporting is carefully monitored and the global price reflects demand. Researchers found that a 1% increase in price led to an increase of .15% in serious injuries and mortality – evidence supporting the opportunity cost hypothesis. Records from the mine inspections provided even starker evidence that high demand leads mines to prioritize production over safety. A 1% increase in price led to a .13% increase in violations of health and safety regulations; many deemed from a negligent or willful act by the employer.

Takeaway: For years, safety and production were viewed as competitors suggesting workers and managers had to choose whether to work safely or get the job done quickly at any cost. Smart employers ingrain safety into production by treating it as an integral part of the systems and processes and this relationship is not compromised when production pressures intensify. If there’s a race to beat the clock, there are no winners – injuries and losses inevitably occur.

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

Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

A Bellingham, Washington company, formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A pipefitter, who also holds a rigger’s certification, was dispatched by her union to work on a project. When she told her supervisor that she has epilepsy, he and other supervisors determined she could not work safely at heights and terminated her. She had not requested accommodations, had no medical restrictions, and her epilepsy was well controlled by medicine.

The law requires employers to make a case-by-case assessment of an employee’s ability to perform the job when safety concerns exist. EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

FMLA

FMLA doesn’t provide protection for employees to evaluate family member’s medical condition

In Schaar v. U.S. Steel Corp., a manager in the customer quality engineering department, who lived in Michigan, was aware of problems with a top customer in Mississippi. When the matter became urgent, he was onsite in Tennessee and was ordered to travel to Mississippi to handle the problem himself. He refused because his wife had a heart condition and wasn’t feeling well and he had to return to Michigan to assess the situation. When he arrived home, he determined his wife did not require medical attention.

Returning to work the next day in Michigan, he was fired for insubordination. The manager sued under the FMLA for both interference and retaliation. The U.S. District Court for the Eastern District of Michigan ruled in favor of U.S. Steel on its motion for summary judgment on both claims. The manager never requested FMLA leave or a reduced work schedule to care for his wife.

Distinguishing between providing care to a family member and evaluating a family member’s condition, the court determined he was not providing care and was not entitled to FMLA leave.

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

In an unpublished decision, Kennedy v. MUFG Union Bank, a bank employee claimed she worked in a hostile work environment and took a medical leave for stress, anxiety, and depression. While she was out, the bank restructured and eliminated her position. Unlike others, she did not receive a severance package.

Her request to return on a reduced work schedule was denied because the position was eliminated, so she filed a comp claim. When it was settled, she resigned voluntarily. She then filed suit based on disability and her race. The court argued there could be no wrongful termination because she was not terminated and that the record demonstrated a legitimate, nondiscriminatory reason for the increased supervision.

Employer not liable for fatal accident caused by injured employee – California

While commuting to work, an employee of the City of Los Angeles struck and killed a pedestrian. A chemist who worked in the lab, the employee did not use his car for employment. He did have a neurological condition and had fallen at work, suffering a back sprain. After some time off, he was allowed to return to work with restrictions. About three weeks later he was driving to work and struck and killed a pedestrian. Initially his license was suspended, but it was reinstated and he was not charged.

Two brothers of the deceased argued the city should be held responsible because it knew of his condition and allowed him to return to work prematurely, so the “work-spawned risk endangering the public” exception to the going and coming rule applied. The court disagreed and found the chemist was on his commute to work and the accident was unrelated to his employment.

Exclusive remedy defense in civil suit allowed in spite of comp denial – Florida

In McNair v. Dorsey, an appellate ruled that the employer’s denial of liability for a comp claim did not prevent it from using the exclusive remedy defense in a civil case. The employee worked for James Armstrong’s tree service company and was working with a coworker, Dorsey, when he alleged he suffered injuries. The insurance company found that there was no compensable claim. He then voluntarily dismissed the comp claim and alleged negligence on the part of both Armstrong and Dorsey, arguing the exclusive remedy defense did not apply since his claim had been denied.

While a trial court found in favor of the employer, the appellate court noted an employer can be barred from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim “by asserting that the injury did not occur in the course and scope of his or her employment.” However, the court noted that the employer is not always foreclosed from claiming immunity to a lawsuit simply because it denied compensability in an earlier proceeding.The factfinder needs to determine if the accident occurred in the course and scope of employment and would have been covered by workers’ comp and protected by exclusive remedy.

Worker who filed comp claim after being fired can bring retaliatory discharge suit – Florida

In Salus v. Island Hospitality Florida Management Inc. a worker reported an injury and later told the employer he was having difficulty getting follow-up treatment. Two weeks later he was fired, allegedly for threatening physical harm to a co-worker, which he denied. He filed suit for retaliatory discharge. The trial court found that reporting an injury was not the same as filing a claim and granted summary judgment to the employer.

The appellate court disagreed. It noted it would not make sense to limit the statute to retaliatory acts that occurred after filing the claim because an employer could easily avoid liability by firing the employee right away. Further the employee’s actions were consistent with a workers’ comp claim that is protected. Since there was a genuine issue of material fact as to the reason for termination, summary judgement was inappropriate.

Health care providers can’t go after comp settlement – Illinois

After an injured employee filed for bankruptcy protection for minimal assets and her pending workers comp claim ($31,000), the state Supreme Court ruled that the proceeds of a workers comp settlement are exempt from claims made by medical providers who treated the injury or illness in re Hernandez. She owed a combined $138,000 to the three medical practices.

Section 21 of the statute provides that any payment, award or decision under the Workers’ Compensation Act is unequivocally free from claims to satisfy debt; however, the health care providers argued that amendments in 2005 provide an exception to the exemption. The court disagreed, noting there was “no ambiguity whatsoever in this provision.”

Employer does not have to pay for rehab after injury is resolved – Minnesota

In Ewing v. Print Craft Inc., an employee sprained his ankle and there was medical disagreement as to whether he developed complex regional pain syndrome (CRPS). His primary care provider and podiatrist found he had, but doctors at the Mayo Clinic disagreed and said the injury was resolved. He met with a rehabilitation consultant who prepared a rehabilitation plan and submitted it to the Department of Labor and Industry and also provided medical management services to address Ewing’s reported symptoms.

Although the insurance company notified her that they were requiring an IME and would not pay for any further services, the consultant continued to provide services. The IME found that the employee had suffered an ankle sprain and did not have CRPS. A compensation judge held the injury was resolved on the date provided by the Mayo Clinic. The consultant appealed and the WC Court of Appeals overturned, noting the print company needed to provide notice and show good cause to terminate the rehabilitation plan.

The Supreme Court reversed, noting an employer’s liability ends when the worker is no longer disabled.

Worker who intentionally shot self with nail gun denied comp – Nebraska

In Eddy v. Builders Supply Co. Inc., an employee said a nail gun misfired and caused a three-quarter-inch nail to become embedded in her right temple. There were no witnesses. While co-workers testified that guns had misfired in the past, the company presented evidence regarding her personal life and a possible suicide note. The compensation court found that the employee shot herself intentionally and the Supreme Court agreed.

Misrepresentations about job search nix benefits – New York

In Matter of Calabrese v. Fortini Inc., an appellate court upheld a finding that a worker had made misrepresentations about his efforts to find a new job, thereby forfeiting his entitlement to benefits. The employer’s investigator contacted several of the employers identified by the worker and found he had not submitted an application, applied for a job that did not exist, or the contact did not exist.

Although the appellate court acknowledged that this evidence was hearsay, it was sufficiently reliable and provided substantial evidence to support the Workers’ Compensation Board finding that the worker had made false representations to obtain benefits.

Award of benefits for unwitnessed and unexplained fall upheld – New York

In Matter of Docking v. Lapp Insulators LLC, a truckdriver was loading a cart when he apparently fell and was found unconscious and bleeding by co-workers. When he regained consciousness, he had no memory of what happened. Under state law, there is a presumption of compensability for accidents occurring during the course of employment, which are unwitnessed or unexplained, and he was awarded benefits by a compensation law judge.

Upon appeal, a state appellate court noted to rebut the presumption, it is the employer’s burden “to provide substantial evidence that the accident was not work-related.” While the employer presented medical testimony that the fall and resulting brain injury were caused by a preexisting cardiovascular condition, the Emergency Room doctor testified that there were no signs of heart damage or atrial fibrillation. The possibility of a preexisting, idiopathic condition was not enough to overturn the decision.

Assaulted bus driver not fully disabled by PTSD and morbid obesity – New York

In Matter of the Claim of Robert Rapaglia v. New York City Transit Authority, the Supreme Court Appellate Division affirmed a Workers Compensation Board decision that the driver had a 60% loss of earning capacity but was not fully disabled. The bus driver argued that the board failed to consider his obesity and limited education and work experience in calculating his percentage of lost wage-earning capacity.

The court noted that in rating the severity of a medical impairment due to PTSD or other causally-related psychiatric conditions, “the evaluation should include the impact of the psychiatric impairment on functional ability, including activities of daily living.” While there was conflicting medical testimony, the court found the Board had not erred in finding that he could not drive a bus, but was capable of other work, nor could it conclude that his obesity was causally related to the workplace injury.

Employer may have to pay for expensive compound cream – Pennsylvania

In Workers’ First Pharmacy Services LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), the Commonwealth Court ruled that a pharmacy did not prematurely file a fee review petition to challenge an employer’s refusal to pay for a compound cream that had been prescribed to an injured employee. The employee had injured her shoulder and the comp claim was accepted. Her physician prescribed a compound cream, which the pharmacy dispensed and billed the employer $4,870.

The employer refused to pay, and the pharmacy filed a fee review application, which the employer argued was premature because it had not been established that the cream was related to the work injury. However, the pharmacy argued that company waived its right to challenge the cream as unrelated because it did not seek a Utilization Review (UR).

After several appeals, the Commonwealth Court ruled that employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek a UR. The court vacated the decision and remanded for a fee review determination.

Widow and children to receive death benefits for fatal workplace stabbing – Pennsylvania

In JBS Holdings USA Inc. v. Workers’ Compensation Appeal Board, a worker was stabbed to death by a co-worker. While the company argued that the murder was related to a “personal animus” and not work-related, the court ruled there was no evidence of personal animosity. The ruling was upheld upon appeal.

Temporary worker who experienced horrific injuries fails to win tort lawsuit – Tennessee

In Henry v. CMBB LLC, the 6th U.S. Circuit Court of Appeals held in a 2-1 decision that the employee’s intentional tort lawsuit was barred by the exclusive remedy provision of the Tennessee Workers Compensation Act. The temporary worker was assigned to work at a manufacturing facility and operated a 200-ton metal press, which contains a light curtain that prevents it from cycling when it detects a worker nearby. An operator had reported that the curtain was not working properly and one was on order, but the press remained in service.

The temp worker was operating the press when the machine cycled, crushing her arms, both of which were amputated below the elbow. She and her husband filed a lawsuit arguing the company intended to injure her because it was well aware of the danger but continued to operate the machine. The courts, however, noted that even if the employer was aware of the potential for injury, it does not mean the employer intended to injure the worker. Precedent has held that even egregious safety violations fail to show actual intent to injure and the exclusive remedy provision prevails. In Tennessee, the intentional tort exception is quite narrow.

Two years apart, injuries can stem from same accident – Virginia

In Merck & Co. v. Vincent, a worker injured his neck and arm in 2009. In 2011, he became dizzy and fell as a result of pain medication, seriously injuring his knee. The Court of Appeals upheld the Workers’ Compensation Commission ruling that the injuries arose from “the same accident” for purposes of determining whether he was permanently and totally disabled. The Virginia statute provides for an award of permanent total disability benefits to a worker who has suffered the functional loss of two limbs “in the same accident.”

The court noted the “compensable consequence” doctrine, which says that if an injury arises out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”

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

 

OSHA watch

Citation penalties increase for inflation

Effective January 15, the DOL increased civil penalty amounts for violations to adjust for inflation by 1.01764%. Here are the new maximum penalties:

Type of Violation Penalty Minimum Penalty Maximum
Serious $964 per violation $13,494 per violation
Other-than-Serious $0 per violation $13,494 per violation
Willful or Repeated $9,639 per violation $134,937 per violation
Posting Requirements $0 per violation $13,494 per violation
Failure to Abate N/A $13,494 per day unabated beyond the abatement date (generally limited to 30 days)

Coronavirus resource

An online resource on a new coronavirus outbreak that includes a link to the Centers for Disease Control and Prevention interim guidance, quick facts about the outbreak, and information on preventing exposures is available.

Letter of interpretation addresses headphones in workplace

Although there is no specific regulation that prohibits the use of headphones on a construction site or any other workplace, there are permissible noise exposure limits under the Hearing Protection standard and employers must protect employees subject to sound levels exceeding these limits. While the letter acknowledges that some manufacturers promote their products as “OSHA-approved” or “OSHA-compliant,” these are misleading as the agency does not register, certify, approve, or otherwise endorse commercial or private sector entities, products, or services. It further cautions that the use of headphones may produce a safety hazard by masking environmental sounds that need to be heard and it is the employer’s responsibility to protect workers from such hazards.

Earthquake safety resource

A new Earthquake Hazard Alert focuses on keeping emergency response workers safe.

Recent fines and awards

California

  • In Nolte Sheet Metal Inc. v. Occupational Safety and Health Appeals Board, the Court of Appeals, 5th District in Fresno unanimously affirmed citations for four serious violations, although the file prepared by the Cal/OSHA office on the day of the inspection was later taken during a car burglary. The company had argued it did not consent to an inspection, the lack of the original inspection file amounted to spoliation and denied the company due process, and the violations were improperly classified as serious.

Georgia

  • In Packers Sanitation Services Inc. v. Occupational Safety and Health Review Commission, the 11th U.S. Circuit Court of Appeals in Atlanta unanimously upheld an administrative law judge’s finding that the company failed to protect its employees from dangerous machinery.

Florida

  • The U.S. Court of Appeals for the 11th Circuit has found a Jacksonville-based roofing contractor, Travis Slaughter owner of Great White Construction Inc. and Florida Roofing Experts Inc, in contempt for failing to pay $2,202,049 in penalties. The court ordered the companies and Slaughter to pay the outstanding penalties of $2,202,049 plus interest and fees, and required them to certify that they had corrected the violations within 10 days of the court’s order. If the companies and Slaughter fail to comply, they face coercive sanctions, including incarceration and other relief the court deems proper.
  • In addition to the above, Florida Roofing Experts Inc. was cited for failing to protect workers from falls at two work sites in Fleming Island and one in Middleburg. Roofing Experts Inc. faces penalties totaling $1,007,717.
  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Royal Palm Beach and Port St. Lucie. The contractor faces penalties totaling $291,724.
  • An employee of Shooting Gallery Range Inc. in Orlando will receive $30,000 in back pay and compensatory damages under a whistleblower settlement. The employee alleged he was fired for reporting safety concerns relating to lead exposure.

Illinois

  • Goose Lake Construction Inc. was cited after an employee suffered serious injuries when an unprotected trench collapsed, burying him up to his waist at a Glencoe, worksite. Proposed penalties are $233,377.

Massachusetts

  • National retailer, Target Corp., was cited for emergency exit access hazards at stores in Danvers and Framingham and faces a total of $227,304 in penalties.

Pennsylvania

  • Webb Contractor Corp. was cited for exposing employees to fall hazards at three separate worksites in the Lehigh Valley area. Inspected after a compliance officer observed employees performing residential roofing work without protection, the roofing contractor, based in Bala Cynwyd, faces $605,371 in penalties.
  • Metarko Excavating LLC was cited for exposing employees to trenching hazards at a Cranberry Township worksite. The company faces $59,311 in penalties.
  • Philadelphia Energy Solutions was cited for serious violations of safety and health hazards related to process safety management (PSM) following a fire and subsequent explosions at the company’s Girard Point Refinery Complex in Philadelphia. The company faces $132,600 in penalties.

Wisconsin

  • Milwaukee Valve Company Inc., based in Prairie du Sac, was cited for exposing employees to lead and copper dust at rates higher than the permissible exposure levels. Proposed penalties are $171,628.

For additional information.

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