OSHA: A review and look ahead

Unlike other agencies, such as the EPA, OSHA has not experienced the scale back in enforcement and rulemaking that was expected under the Trump administration. Most attribute this to the fact that there is still no Assistant Secretary of Labor – the longest vacancy ever for the top job at OSHA. Given the present political climate and election year activity, few expect the position to be filled during this final year of President Trump’s first term.

In addition, two vacancies on the Occupational Safety and Health Review Commission (OSHRC) meant that it could not issue decisions since March 28, 2019, because it did not have a quorum. However, it can now resume its work because the Senate confirmed Cynthia Attwood and Amanda Wood Laihow by voice vote Jan. 9, 2020.

What’s been unexpected?

  • No reduction in enforcement emphasis programs. OSHA continues to implement the same number of national (NEP) and regional (REP) emphasis programs as under the Obama administration.
  • Number of inspections has increased. While the number of compliance officers (CSHO) is lower, the number of inspections in 2019 was 33,401, compared to 31,948 in 2016. Although this means the average CSHO’s hours per inspection is lower, it demonstrates a continued commitment to enforcement.
  • Average penalty per serious violation increased dramatically. Under $1,000 in 2009, the average penalty per serious violence reached a high of $5,232 in 2019.*
  • Records for the number of $100,000 penalty cases. In the first year of the Trump administration, there was a record-setting 218 cases with penalties of over $100,000. Last year it was 179 and the three years average is 199 cases, compared to a high of 202 cases in 2011 and an average of 168 cases under the Obama administration.*
  • Little change in the percentage of inspections that result in a serious, willful, or repeat violation. If an employer gets a knock on the door, there’s a very good chance that at least one serious, willful, or repeat violation will be issued. For the past two years, only 28% of inspections closed as “in compliance.” For those that were not in compliance, 87% had at least one serious, willful, or repeat violation in 2017 and 2018 and 86% in 2019.*
  • No let-up on repeat violations. Under the Obama administration, there were significant changes that increased the likelihood of a repeat violation. Workplaces in a corporate family were no longer treated as independent establishments, but as one workplace; in the guidance document, the Federal Operations Manual, the look back period was extended from 3 to 5 years, and there was proactive targeting of past violators for inspections. These practices have not changed. In fact, in 2018 OSHA successfully defended the case, Triumph Construction Corporation v. Secretary of Labor and the U.S. Court of Appeals for the Second Circuit ruled that OSHA is not bound by any look-back period on which to base a repeat violation, a significant expansion of the scope of repeat classifications.

    However, there was one bright spot for employers. In July 2018, the OSHRC issued its decision in Secretary of Labor v. Angelica Textile Services, Inc., providing employers guidance on rebutting repeat violations and clarifying the defenses that employers may have in combating repeat violations. Although the violations involved the same standards of LOTO and confined spaces, the OSHRC found that they were not “substantially similar” because the original violations involved wholesale deficiencies and the company had taken significant abatement actions, and therefore, the conditions differed. OSHA, however, remains committed to repeat violation enforcement, and the case is on appeal to the Second Circuit.

  • Increases in budget. Typically under a Republican administration there are budget cuts to limit enforcement, yet the budget has been increased twice with a 4% increase for FY20, including the enforcement category.
  • Penalties keep rising. Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the maximum allowable penalty amount for OSHA violations is adjusted annually. The latest increase occurred on Jan. 15, 2020. The maximum penalty for “willful” or “repeat” violations is now $134,937 and the maximum fine for serious, other-than-serious, failure-to-correct (per day), and posting-requirement violations increase is $13,494.
  • Criminal prosecutions continue. Two Department of Justice (DOJ) memos that expanded worker safety criminal prosecutions issued by former AG Sally Yates continue to be enforced by AG William Barr. The first relates to individual accountability for corporate wrongdoing and the second encourages the DOJ to use other environmental laws with more teeth and longer statute of limitations to prosecute worker safety crimes.
  • Site Specific Targeting Plan implemented. In Oct 2018, OSHA initiated the Site-Specific Targeting 2016 inspection program (SST-16) that uses the injury and illness data electronically submitted by employers in 2016. These are tough wall-to-wall inspections. The SST list includes 3,000 establishments and 1,000 inspections have already been conducted.*

Scale back in rules and public shaming

  • The first significant deregulation action was the overturning of the Volks rule by Congress under the Congressional Review Act in 2017. The Volks rule gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period.
  • There also was a scale back of the e-recordkeeping rule, adopted in January 2019, that eliminated the requirement for the largest establishments (250+ employees) to annually submit electronically 300 Logs and 301 Incident Reports. However, the rule did not roll back as many provisions as expected, notably the anti-retaliation provision and public reporting concerns.
  • There has been a slowdown in rulemaking. Some rules moved to “long term actions,” including the Process Safety Management (PSM) Standard, Drug Testing Program and Safety Incentive Rules, and Combustible Dust.
  • There’s been a significant decrease in the number of enforcement press releases issued by OSHA, which can be inflammatory and issued before employers have an opportunity to respond. In 2019, 176 press releases were issued, compared with an average of 463 per year under the Obama administration.* However, the tone hasn’t reverted to the factual reporting of the Bush administration but has remained aggressive.

A look ahead

Inspections

It is projected that the number of inspections will remain steady or rise slightly as the budget includes funding for an additional 26 FTE CSHOs and five FTE whistleblower investigators. Expect to see an aggressive continuation of the SST-16 program that targets non-construction workplaces with 20 or more employees with elevated Days Away Restricted or Transferred (DART) rate, together with a random sample of low-rate establishments and those that did not submit the required electronic data.

The top four priorities are investigation of imminent danger, fatality and catastrophe investigations, response to complaints, and programmed inspections, such as SST and emphasis programs. In Oct. 2019, for the first time since 2015, OSHA changed the weighting system it uses for inspections:

  • Group A, criminal and significant cases (those where fines total more than $180,000): 7 Enforcement Units (EUs)
  • Group B, fatalities and catastrophes (hospitalization, amputation, physical loss of an eye), chemical plant National Emphasis Program, process safety management inspections: 5 EUs
  • Group C, the “fatal four” – caught-in, electrical, fall and struck-by hazards: 3 EUs (expect an uptick in construction industry inspections under this group)
  • Group D, priority hazards: amputation, combustible dust, heat, non-PEL overexposures, workplace violence, permit-required confined space, air contaminants, noise, and site-specific targeting: 2 EUs
  • Group E: everything else: 1 EU.

With these priorities, employers can expect to see more six-figure penalties.

Rulemaking

  • LOTO. Many employers were relieved when the term “unexpected energization” was not removed from the LOTO standard as proposed; however, OSHA left open the door to remove it in the future. In May 2019, the agency issued an RFI seeking input on control circuit type devices and robotics, but to date, OSHA has not provided updates on rulemaking action. There has been an uptick in requests for variances from businesses to consider safe robotic systems as energy-isolating devices. This is an opportunity to change the standard beneficially to reflect technological advances and bears watching.
  • Silica rule. The silica standard requires that medical surveillance must be offered to employees who will be exposed at or above the action level for 30 or more days a year starting on June 23, 2020. Employers with silica present need to document objective data that they do not have exposures at or above the action level under any circumstances.

    It’s anticipated that the recently requested feedback on expanding table 1 of the standard will result in additional engineering and work practice control methods that effectively limit silica exposure for the tasks and equipment currently listed in the table.

  • Beryllium. The compliance date for ancillary provisions in the beryllium standards for construction and shipyards is September 30, 2020. Enforcement of the engineering controls in the general industry standard starts March 10, 2020.
  • Workplace violence. OSHA plans to initiate a Small Business Regulatory Enforcement Fairness Act review panel that will begin an effort to create a standard designed to address workplace violence in the healthcare and social services industries.
  • Other. Other possible new rulemakings will deal with powered industrial trucks, walking-working surfaces rule to clarify its requirements for stair rail systems, cranes and derricks in construction, communication tower safety, welding in construction confined spaces, occupational exposure to beryllium and beryllium compounds in construction and shipyard sectors, and updates to the Hazard Communication Standard.

*Conn Maciel Carey webinar, Annual OSHA Update: 2019 in Review and 2020 Forecast

Note: The information above applies to OSHA in federally mandated states. If you are located in a state where a state agency enforces the OSH Act, the information may differ.

 

Workplace Wellness Programs the Key to Cutting Insurance Costs

According to numerous studies, healthier employees lead to lower premiums. And if employers can make their employees healthier without cutting benefits or shifting more premium costs to their employees, is there a downside? After all, Fortune 1000 companies have been using wellness to combat rising health care costs for years.

According to a Duke University study, the cost of obesity among full-time employees is estimated to be $73.1 billion. As a result of health problems linked to obesity, lost job productivity could be more costly than medical expenditures. The report recommended that employers promote healthy foods in the workplace, encourage a culture of wellness
from the CEO on down, and provide economic and other incentives to employees who show signs of improvement. While workplace wellness programs began as a niche industry, they have 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.

Sadly, these programs have no value if they’re not used. A study by the National Institute
for Occupational Safety and Health, “Availability of and Participation in Workplace
Health Promotion Programs (WHPPs) by Sociodemographic, Occupation, and Work
Organization Characteristics in U.S. Workers,” found that approximately 47 percent of workers have access to WHPPs and only 58 percent of those with access actually participate.

So, who’s using WHPPs and who’s not?

That depends on several factors, including the type of job and whether the employee is full time or part time.

Occupations such as farming, fishing, forestry, food preparation and serving, construction, and extraction had the lowest availability of WHPPs and workers in these occupations were also the least likely to participate in the programs. Employees 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 kept workers from participating, including time
constraints, lack of awareness, low supervisory support, and perceived need, but noted such barriers vary by industry.

The report concluded that employers should gauge workers’ priorities before designing and implementing WHPPs and to customize programs to their employees’ specific needs in order to maximize participation.

Another factor that may be helpful in gauging participation is to identify which wellness perks were most important to workers and how those perks impacted productivity.

Polling among employees was surprising. It wasn’t fitness facilities nor technology-based
health tools that topped the list of why workers had job satisfaction, but air quality and natural light.

Air quality and light were the biggest influencers of employee performance, happiness, and well-being. Also high on the must-have list was water quality, followed by comfortable temperatures, then acoustics and noise levels.

Not surprisingly, employees want to be able to customize their work environment, such as the temperature and natural light.

One company has taken those needs to heart by managing the acoustic levels in their employee’s space by creating a floor plan without assigned seating. Neighborhoods of workspaces were 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:

  • Make WHPPs employee-centric – Survey employees about their workplace wellness priorities and tailor or modify the program to those needs.
  • Integrate WHPPs with workplace safety programs – For positive results, common safety issues such as work schedules, workplace culture, ergonomics, substance exposures, noise levels, fatigue, and so on should be incorporated with the wellness
    program.
  • Recognize that workplace wellness is more than physical health – Studies have shown that most worksite health programs focus on physical activity, nutrition, and stress management. Environmental factors such as air, light, temperature, and acoustics are usually overlooked.
  •  Personalize as much as possible – Employees love to personalize their workspace, whether it’s framed photos of their kids or Star Wars memorabilia. Along those same lines, employees expect the company to take their well-being into account in
    all aspects of work.
  • Recognize that workplace wellness is more than physical health – Studies have shown that most worksite health programs focus on physical activity, nutrition, and stress management. Environmental factors such as air, light, temperature, and acoustics are usually overlooked.
  • Recognize the challenge of changing human behavior – Personal behaviors and habits, including health and safety, are very difficult to change. It takes take time and effort.
  • 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.
  • Monitor employee satisfaction – Attempt to measure the return on investment of WHPPs, including health care costs, absenteeism, disability claims, and workers’ compensation claims. It’s important to incorporate “soft” measures, too, such as satisfaction and morale.

In addition to holding down insurance premiums, wellness programs can positively affect workers’ compensation costs, although measuring the impact takes longer because of the method of calculating the experience rating.

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

Things you should know

Funding package extends TRIA, eliminates Cadillac Tax

The federal funding package signed by President Donald Trump in late December includes a seven-year extension of the Terrorism Risk Insurance Program (TRIA). The Cadillac tax, an excise tax on high cost employer-sponsored health plans, which was a part of the Patient Protection and Affordable Care Act (ACA) was permanently repealed.

Medical and indemnity payments increase with age of worker: WCRI

A recent study from the Workers Compensation Research Institute (WCRI) found little difference in injury rates and outcomes for workers regardless of their age, with rates highest for workers aged 19 and younger, followed by workers aged 55 to 65. Younger workers are more likely to suffer from struck-by injuries or cuts and older workers more likely to suffer from falls and fractures.

The key differences are in payments per claim and lost time. Payments per claim steadily increased up to age 64, with permanent partial disability/lump sum payments averaging a little more than $10,000 per claim for younger workers, climbing to an average of nearly $25,000 for workers aged 60 to 64. Average duration of temporary disability benefits plateaued at age 45 at 24 weeks compared with nine weeks for the youngest workers.

There was a slightly more than 10% chance to have seven days of lost time at 36 months of maturity for workers aged 15 to 19 and a 31% chance for workers 65. Indemnity payments for workers aged 60 – 64 averaged $22,000 compared to under $5,000 for younger workers.

For the report.

Fatal injuries increase: BLS

Workplace fatalities increased from 5,147 in 2017 to 5,250 in 2018, but the fatal occupational injury rate held steady at 3.5 per 100,000 full-time equivalent workers according to the Bureau of Labor Statistics. Fatalities from transportation remained the most frequent fatal occupational injury, accounting for 40% of occupational deaths. Workplace violence deaths increased 3%, including a 12% increase in suicides, and unintentional overdoses also increased. Fatalities from falls decreased 11% after reaching a 26-year high in 2017 and contact with objects and equipment fatalities declined 13%.

NCCI launches online comp court case tool

Court Case Insights,” a new resource tool from the National Council on Compensation Insurance (NCCI), provides information and interpretations of court cases reported by NCCI’s legal team.

Virginia Beach mass shooting results in 450 comp claims

More than 450 city workers have filed workers’ compensation claims following a mass shooting at the Virginia Beach city offices in May that left 12 dead and six injured. Many of the claims are for mental stress.

State News

California

  • The new reporting requirements for Cal/OSHA went into effect Jan. 1. AB 1804 directs employers to immediately disclose incidents via telephone or through a new online portal. Employers may continue to send incident reports by email until the agency launches the new site.

Florida

  • The maximum weekly benefit level rises to $971, up $31.

Illinois

  • Governor signs amendments (SB 1557) to The Cannabis Regulation and Tax Act to clarify workplace drug testing and other issues, including protections for an employer’s drug testing policy.
  • Legislation regulating the use of artificial intelligence (AI) in hiring practices went into effect Jan. 1.
  • The Workers’ Compensation Commission is reminding stakeholders that it has proposed a new rule, required by Senate Bill 94, that specifies how an insurer must send a complete explanation when medical bills are denied.

Massachusetts

  • new study by the Department of Health of Workers’ Compensation Data aims to help identify priorities for reducing injuries and illnesses among private workers. One finding shows that health care continues to be one of the most dangerous types of work in the state, and violence against health workers is one of the leading causes of injuries.

Missouri

  • The Department of Commerce and Insurance has recommended a 1.6% decrease in workers compensation insurance loss costs for 2020. The change is one of the smallest in the country and the smallest decrease in recent years.

New York

  • The Workers’ Compensation Board has published FAQs relating to the drug formulary.
  • The law prohibiting employers from asking applicants about their salary histories went into effect Jan. 6.

Tennessee

  • The insurance commissioner approved a 7.1% overall loss cost decrease for 2020, lower than the recommended 8.2% from NCCI. The reduction will become effective March 1, 2020.

Virginia

  • The Corporation Commission has approved an overall loss cost decrease of 10.7% for the voluntary market and an 8.4% decrease for the assigned-risk market, effective April 1.
  • The State Corporation Commission (SCC) has approved revisions to the premium levels that will lower the overall premium level for the industrial, federal, surface and underground coal mine classifications in the voluntary market and assigned risk plan. The changes become effective April 1.

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

OSHA watch

Inspections increase in FY 2019

In FY 2019, which ended September 30, 33,401 inspections were conducted. This is more inspections than in each of the previous 3 years – 32,023 in FY 2018, 32,408 in FY 2017, and 31,948 in FY 2016. The agency also provided a record 1,392,611 workers with training on safety and health requirements through its various education programs.

CIC certifications no longer accepted

Certifications issued by Sanford, Florida-based Crane Institute of America Certification LLC (CIC) for crane operators engaged in construction activities are no longer valid because the CIC is no longer considered a nationally recognized accrediting agency. Employers will not be cited for work performed by crane operators holding CIC-issued certifications obtained before Dec. 2, 2019, if those crane operators acquired the certification with the good faith belief that it met government standards. However, CIC certifications or re-certifications issued on or after Dec. 2, 2019 are not acceptable.

Minor corrections and clarifications to Walking-Working Surfaces regulations published

notice published in the Federal Register corrects minor errors and clarifies requirements in the Walking-Working Surfaces and Personal Protective Equipment standards.

Update to NEP on amputation hazards in manufacturing

Updated guidance was issued for Compliance Safety and Health Officers conducting inspections in manufacturing facilities that could potentially have incidents involving amputations. There is a new method for targeting industries that involves using amputation reports submitted by employers as well as Bureau of Labor Statistics (BLS) incident and amputation rate data. The 75 NAICS codes covered under the National Emphasis Program (NEP) can be found in Appendix B of the compliance directive.

There will be a 90-day outreach program offered to employees.

Recent fines and awards

Florida

  • Garabar Inc., based in Lake Worth, was cited for exposing employees to fall and eye hazards at a worksite in Royal Palm Beach. The roofing contractor faces $64,974 in penalties. The inspection was conducted under the REP for Falls in Construction.
  • Action Roofing Services Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at Palm Beach Gardens and Port Saint Lucie worksites. Inspected under the REP for Falls in Construction, the roofing contractor faces $146,280 in penalties.

Georgia

  • Kittrich Corp., operating as Avenger Products LLC, was cited for exposing employees to amputation, fire, and electrical hazards at the company’s Gainesville facility. The pesticide and agricultural chemical manufacturer faces $90,801 in penalties for lockout/tagout violations, improper storage of chemicals, failure to update and give employees access to safety data sheets, and more.
  • Wright Metal Products Crates LLC, based in South Bend, Indiana, and operating as WMP Crates was cited for exposing employees to amputation, chemical and other safety hazards at a worksite in Lavonia. Inspected under the NEP on Amputations and the REP for Powered Industrial Trucks, the company faces $195,034 in penalties.
  • Mavis Southeast LLC, operating as Mavis Discount Tire, was cited for exposing employees to fall, struck-by and other hazards at the company’s distribution facility in Buford and faces $191,895 in penalties.

Massachusetts

  • United Parcel Service Inc. was cited for exposing employees to multiple hazards including exit access, fire, and electrical at the shipping and delivery facility in Vineyard Haven. The company faces $431,517 in penalties for four repeated and seven serious safety violations.

Missouri

  • Martin Davila, operating as Davila Construction, was cited for exposing employees to fall hazards at job sites in Wentzville, Grover, and St. Louis. The residential roofing company faces $205,098 in proposed penalties.

New York

  • Frazer & Jones Company Inc. was cited for 33 workplace health and safety violations at the manufacturer’s Solvay iron foundry. The company faces $460,316 in penalties for multiple violations, including exposing employees to crystalline silica, iron oxide, combustible dust, falls, struck-by and caught-between hazards, unsafe work floors and walking surfaces, inadequate respiratory protection and more.
  • A whistleblower investigation found that Bouchard Transportation Company Inc., B. No. 272 Corp, a petroleum barge company based in Melville, and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with U.S. Coast Guard (USCG).

Pennsylvania

  • Dana Railcare, based in Wilmington, Delaware, was cited for confined space hazards after an employee asphyxiated while servicing a rail car containing crude oil sludge in Pittston. The railcar service provider faces $551,226 in proposed penalties and was placed in the Severe Violator Enforcement Program.

Wisconsin

  • An administrative law judge of the OSHRC affirmed a citation of $2,800 against Guaranteed Home Improvements LLC after a worker was seriously injured in a ladder fall for using the ladder in icy and slippery conditions and failing to secure it to prevent accidental displacement. There was, however, an issue of fact regarding the side rails of the ladder, and the second citation of $2,884 was vacated.

For additional information.

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

Watch out for 20 costly workers’ comp mistakes in 2020: Part Two (11-20)

Part 2

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

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

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

  1. Not updating job descriptionsJob descriptions are critical in the recruitment and hiring process, promote greater accountability, enable medical providers and employers to work together in recovery at work, and provide protection in litigation complaints under a host of laws, including the ADA and FMLA. Don’t underestimate the importance of reviewing job descriptions as an integral part of work processes.
  2. Not adapting training to the generational span in the workforceToday, organizations face the challenge of motivating, training, and engaging individuals that span from Gen Z (born after 1997) to Baby Boomers (born after 1945). Companies must recognize the different skill gaps, communication styles, and expectations and find creative ways to reach all generations. While much is written about adapting the workplace to the declining physical abilities of an aging workforce, Gen Z, which is expected to represent 20% of the workforce in 2020, has only recently gotten attention.

    Gen Z grew up immersed in technology and constant interaction, multitasks across five screens on average, freely expresses themselves online, is visually oriented, and has a very short attention span. Many do not have hands-on industrial and mechanical experience, making concepts such as lock-out tagout hard to grasp. Expect the trend of personalized and microlearning to continue in 2020.

  3. Failing to foster mental health resilienceMuch of the legislative activity for presumptive laws is focused on public safety personnel, but there is movement to extend it to other employees such as nurses, teachers, private company EMTs or others on the front lines in crises. There has also been an uptick in workers’ compensation claims for post-traumatic stress disorder following shootings and other violent incidents along with claims for extreme stress. These are complicated and the state laws for coverage vary greatly, although most are limited. Even when the injuries are not deemed compensable, mental health issues can adversely affect recovery.

    These factors, coupled with an increase in workplace suicides, mean that employers cannot ignore the mental health of their employees.

  4. Having cybersecurity myopiaWhile most people think of data and information when they think of cybersecurity, it also can involve safety risks. As operations become more digital and connectivity increases, IoT networks become more vulnerable. Cyber invasions and infections can be used to create havoc or cripple essential equipment for financial gain. Hackers may be insiders or outsiders or the issue may be worker errors.
  5. Overlooking heat stress hazardsWith rising ambient temperatures, 18 of the last 19 years have been the hottest on record according to NASA. The problem is not limited to the Sun Belt states. OSHA recently fined a utility-pole service provider in Nebraska for a heat-related death. Heat stress poses a serious health hazard to workers and also increases safety risks.
  6. Not evaluating telemedicineThe use of telemedicine has been slow to take hold in workers’ comp, but some employers have used it successfully to speed access to care, improve patient compliance, and reduce costs. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow up care.
  7. Having a claims denial mindsetDenied claims often lead to higher medical costs and litigation, as studies show about 67% of initial denials are approved. When the claim is legitimate and the claim is denied, it leads to bad feelings and low morale. If you suspect fraud, strongly present the case to the adjuster. But denying claims to lower costs is going to backfire.
  8. Hiring undocumented workersThe national debate on immigration has left undocumented workers in the precarious position of deciding whether to pursue medical care and benefits at the risk of arrest and deportation. While employing undocumented workers is illegal, they represent a good percentage of the workforce in construction, agriculture, and hospitality. In some cases, they are knowingly hired and in others, they have presented false documentation. The statutes vary by state, but many states cover workers compensation for undocumented workers.

    It makes good business sense to validate legal status through E-Verify at the start of employment.

  9. Not staying abreast of legislative and regulatory changesIn addition to the items identified above, drug formularies, medical treatment guidelines, opioids, and Medicare Set Asides regulations will significantly impact workers’ comp. Challenges to the constitutionality of the ACA and single-payer healthcare also bear watching.
  10. Not planning for the changing nature of workThe year 2020 begins a new decade destined to see humans and machines working as integrated teams, with the Fourth Industrial revolution bringing technologies that blur the lines between the physical, digital and biological spheres across all sectors. Retail had more injuries than manufacturing in 2018. Hazards from employee interactions with motorized equipment like autonomous forklifts and robots, high-stress holiday hours, slips and falls, and overexertion have all contributed to the increase.

    Companies are struggling to implement safety protocols that match the pace of automation and protect employee privacy. Drones, wearables, and apps continue to gain traction in workplace safety, but cost, privacy, understanding the proper use and how to analyze the data remain barriers, particularly for smaller employers.

    Further, this tectonic shift has implications for training and education as workers need new skills to adapt to their changing roles and responsibilities. Lifelong learning will become a primary driver for employee success and employees will seek employers that provide such opportunities. It’s got to be all about positioning for the future.

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

Six reasons you can’t ignore mental health in workers’ comp

Compensability of mental injuries in workers’ compensation is complex and varies widely by state. Some states allow compensability for physical-mental injuries, where a workplace injury leads to a mental condition, such as depression. Less common are allowances for mental-physical claims, where a psychological condition arising out of the worker’s employment causes a physical illness, such as stress leading to a heart attack.

Mental-mental injuries involve a psychological occurrence at work, which leads to a psychological injury or condition, such as post-traumatic stress disorder (PTSD). They’re controversial, limited, and have gotten a lot of attention lately as states have considered new laws, especially for first responders.

Similar to physical injuries, in order to be compensable, the mental injury or condition must arise out of and occur during the course of employment. Given the subjective nature of mental health claims, pre-existing conditions, and the time it takes for conditions to manifest, they can be contentious and difficult to prove under this standard.

However, the issue is not just compensability. Whether or not these injuries are compensable, they can greatly impact the cost of the claim, productivity, and morale.

Here’s how:

  1. They can have a significant impact on the duration of a claim. An expert commentary on IRMI notes that more than 50 percent of injured workers experience clinically-related depressive symptoms at some point, especially during the first month after the injury. Unresolved chronic pain, lack of coping skills, fear of job loss, are just some of the factors that lead to “disability syndrome” – the failure to return to work when it is medically possible, with claim costs spirally out of control. When physical treatments aren’t making progress, it’s time to start thinking about psychological factors.
  2. Mental health conditions are some of the costliest health issues to treat and result in harder-to-quantify costs such as lost productivity and absenteeism. Untreated, employees have the potential to become an unsafe worker, which can affect other employees.
  3. While mental workers’ compensation claims represent a small percentage of all claims, many experts note they are growing. Greater awareness of these injuries by all stakeholders, efforts to reduce the stigma associated with mental health, attorneys advertising on TV, poor work-life balance, the modern 24/7 workplace, successful court cases, all contribute to rising frequency.
  4. According to a recent article in Business Insurance, Reviews of psych claims in comp increase, “requests for independent medical examinations for workers compensation claims with a psychological condition are rising, in part due to greater awareness of post-traumatic stress disorder and an increase in workers seeking treatment for depression and anxiety in conjunction with a physical injury.” Psych IMEs often are costlier than physical exams, driving comp costs higher.
  5. PTSD is increasingly a common condition in claims, but often it’s added later. This makes it difficult to determine if the claim is legitimate or malingering, an attempt to prolong the claim.
  6. Although mental health remains a taboo subject in many workplaces, changing workplace demographics reflect a generational shift in awareness. More and more employees feel a company’s culture should support mental health. According to the American Psychiatric Association, 62% of Millennials say they’re comfortable discussing their mental health issues, compared to 32% of Baby Boomers. Providing employees with the support they need improves not only engagement but also recruitment and retention.

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

Early workplace injuries predictor of frequent filers

Workers injured in the first six months of their employment are more than twice as likely to have three or more lost-time injuries during their duration of employment than other workers, according to a recent study published in the American College of Occupational and Environmental Medicine. For each year employed before the first lost-time injury, the probability of having three or more lost-time injuries decreased by 13%, according to the study.

The study included 7,609 lost-time claims at Johns Hopkins Health System and University from 1994 through 2017. The injuries occurred among 5,906 workers; 84% were health care workers, and the remainder were academic employees. Although only 49 workers (0.83%) had five or more claims, they accounted for 3.5% of claim costs, or $4.8 million. The workers in the study had an average length of employment of 15.7 years.

Other studies have shown that new employee risk of injury is higher than other workers. Earlier research from the Toronto-based Institute for Work & Health (IWH) found that employees in their first month on the job have more than three times the risk for a lost-time injury than workers who have been at their job for more than a year.

Neither study delved into the issue of “why.” Common speculation is that training and mentorship were inadequate or that hiring practices are the root of the problem. It makes sense because newness is the common thread. Workers performing unfamiliar tasks in a new work environment with less knowledge and awareness are at a more significant risk regardless of their age, according to the IWH.

Yet, assumptions should not be made and each company must analyze their own data. Begin by looking at the data on the injuries incurred in the first six months of employment. Was the hiring process rushed or inadequate in anyway? Was there a post-offer physical exam?

Assess the effectiveness of training and acclimation to the job. Were new workers given real-life practice, a clear message about safety, site-specific information, allowed to start in low-risk situations and advance to higher-risk work? While people learn differently, the more they can perform the work, the better they become.

Review the incident investigations to look for commonalities – location, department, job function/procedure, equipment and so on. How effective was the return-to-work experience?

How you intervene depends on what you learn. It may be that you need to shore up your training program, implement a mentorship approach, or alert the supervisor to provide additional oversight so the employee works more safely. If there are “red flags” such as the injured worker immediately hiring a lawyer, conflict with supervisor or other workers, insufficient detail about injury/accident, no witnesses, failure to keep medical appointments, and so on, you should consult your attorney. In most cases, the injuries of new employees are legitimate, but new employees with fraud “red flags” require special attention.

The message to employers is that there is an association between early employment injuries and risks for multiple injuries. Repeat claims are costly. A thorough analysis is an opportunity to develop preventive measures or cut loose a potential serial offender.

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

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