Tag: Workers Comp

A New York bill to allow injured workers to pursue litigation in the court system following administrative workers compensation rulings has been sent to Gov. Kathy Hochul.

Senate Bill 9149 would amend the state’s workers compensation law to state that, “no finding or decision by the workers’ compensation board, judge or other arbiter shall be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer-employee relationship.”

Collateral estoppel, also known as ‘issue preclusion,’ prevents an individual from relitigating an issue.

Sponsors of the measure said the law needed updating after cases in which judges precluded injured workers from the court system due to prior administrative decisions by the Workers’ Compensation Board.

The bill passed both chambers of the legislature in June and was sent to Gov. Hochul’s office Monday.

It was not immediately clear if the governor would sign the bill into law.

The California workers compensation system reported an increase of 1,005 COVID-19 claims from October to November, the first increase in such claim volume since June, according to a report released Tuesday by the California Workers’ Compensation Institute.

The CWCI said the claim volume increase is likely attributed in part to the BA.5, BQ.1 and BQ.1.1 COVID-19 subvariants.

The number of claims varied by region and industry, with the highest increases in Los Angeles County, the Bay Area and the Central Valley, and the industries most affected being public safety, government, health care and retail.

The Central Valley saw double the number of COVID-19 claims in November than October, and the region surpassed the Bay Area to become California’s second-largest region for COVID-19 claims.

The latest data, reported as of Dec. 14, shows health care workers for the first time since January 2021 filed more COVID-19 workers comp claims than public safety and government employees.

The data also shows that the rising figures came after a peak of 9,626 claims filed in June followed by a seven-month low of 1,442 claims in October.

In November, claims increased 69.7% to 2,447, and additional claims with November injury dates are still being recorded, according to the CWCI.

Based on historical reporting, the CWCI projects the November COVID-19 claim count to hover around 3,303, which would be 9.2% below the projected total of 3,639 claims from one year earlier.  

 

 

Pandemic workplace safety duties coupled with a steady drop in the number of Occupational Safety and Health Administration inspectors since 2014 have challenged the agency, legal experts say.

“It’s objectively true that OSHA has been shrinking, and the staff has been shrinking year over year for a while — really going back to the (2013) sequestration and some government shutdowns during the Obama administration,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP.

Mr. Conn referred to a Dec. 13 report by the U.S. Department of Labor’s Office of Inspector General on the department’s top management and performance challenges that found the decline in inspectors from a high of 860 in 2014 to 750 in 2021 had made it difficult for OSHA to protect workers at an estimated 8 million worksites.

The annual report followed one in November in which the OIG said OSHA “did not sufficiently protect workers from COVID-19 health hazards” during the pandemic.

Jessica E. Martinez, Los Angeles-based co-executive director of the National Council for Occupational Safety and Health, said there “is an urgent need for OSHA to add more inspectors, more whistleblower investigators and more staff throughout the agency to effectively enforce our safety laws and prevent unnecessary injuries, illnesses and fatalities.”

The U.S. Bureau of Labor Statistics on Friday released its annual Census of Fatal Occupational Injuries, finding “that a worker dies every 101 minutes from a preventable incident at work,” she said. “So, every day of delay in getting more OSHA inspectors on the job to identify and reduce workplace hazards can cost an additional 14 lives.”

The OIG report also found that OSHA has been challenged in

protecting workers who report potential worksite safety violations due to failure in some cases to complete subsequent whistleblower investigations within the statutory requirement of 30, 60 or 90 days.

“The pandemic caused a significant increase in the number of whistleblower complaints OSHA received, while the number of full-time equivalent (FTE) employees, including inspectors within OSHA’s Whistleblower Protection Program, decreased,” the report said. During the early months of the pandemic, from February through May 2020, the whistleblower program received 4,101 complaints, a 30% increase from the year-earlier period, the report said.

OSHA did not respond to requests for comment.

The latest report noted that it can take up to five years for an inspector to be fully trained and that more money in the agency’s budget this year did not correct the issue.

“Even though OSHA’s budget request included the hiring of 155 new inspectors in FY 2022, the current lack of available inspectors and time lag for an inspector to become fully trained can lead to less inspections, diminished enforcement of high-risk industries, and, ultimately, greater risk of injuries or compromised health for workers,” the report said.

“There has been a major brain drain in the past few years caused by the retirement of many seasoned inspectors,” Melissa Peters, Walnut Creek, California-based shareholder with Littler Mendelson P.C., wrote in an email. “Certified safety and health officers who were considering retiring early were likely pushed to do so after the pandemic. I imagine the pressure placed on inspectors since 2020 …  has been enormous.”

“Like any profession, it takes time for an inspector to know what they are doing,” Ms. Peters wrote. “Even OSHA offices that have hired inspectors likely won’t feel relief for several years. The increase in employee awareness of safety in the workplace since the pandemic is challenging. An increase in complaints means more site inspections. One inspector can accomplish only so much in one day.”

And inexperienced inspectors can introduce more problems for employers facing inspections, according to Adam Young, Chicago-based partner at Seyfarth Shaw LLP. 

“For employers, OSHA’s staffing concerns and use of new compliance officers often mean that the compliance officer conducting the inspection does not have industry knowledge and is less familiar with the relevant requirements,” he said.

“They also may not yet be familiar with OSHA’s Field Operations Manual or other standard OSHA procedures,” he said. “This can lead to attempts to expand inspections for which OSHA has no legal basis and inappropriate questions during employee interviews.”

 

 

A New York bill that would expand the pool of workers covered by workers compensation mental injury claims is now headed to Gov. Kathy Hochul for her consideration.

Senate Bill 6373 was advanced to the governor’s office on Monday after it cleared both chambers of the legislature in majority votes in May and June, respectively.

The measure would amend the state’s workers compensation law to permit all workers the ability to file injury claims relating to post-traumatic stress disorder.

Under existing law, workers compensation mental injury claims are permitted for police officers, firefighters and emergency medical personnel.

The bill replaces those professions with all workers.

It also amends language in the statute to say that mental injury claims can be filed in cases involving work-related stresses occurring “at work,” as opposed to “in a work-related emergency,” which is the current wording.

It was not immediately clear whether the governor would sign the bill into law. 

 

The Occupational Safety and Health Review Commission has affirmed two workplace citations issued to a telecommunications contractor after an employee died while performing aerial work on fiberoptic cable in January 2020.

The commission on Friday affirmed $24,290 in penalties stemming from two serious violation citations issued by the Occupational Safety and Health Administration to Brookfield, Vermont-based Eustis Cable Enterprises LTD.

The company was cited after a worker was killed when his tool line belt rose up his body and suffocated him while he was doing aerial pole work at a rural worksite in Andover, New York.

The first citation addressed several training failures, including that it did not provide the man with fall protection training before doing aerial tasks. The second citation related to a lack of tools and personal protective equipment.

Emergency room visits by injured workers showed “substantial variation” across 28 states, even for the same injuries, calling into question whether some state programs push the more expensive care at the onset of an injury regardless of medical necessity, according to a report released Monday by the Workers Compensation Research Institute.

In 2021, emergency room utilization for initial medical services ranged from 14% in Arizona to 37% in Massachusetts, with many states falling in the 20% to 25% range. WCRI found that the variation was even larger for conditions such as sprains and strains.

Some factors behind the variation “may include local norms of emergency room utilization and state-specific workers compensation system features,” WCRI said.

The pandemic also played a role: The study found that between 2020 and 2021 emergency room utilization for initial medical services tended to be lower when the COVID-19 caseload was higher.

“The substantial interstate variation in the use of (emergency departments) across states, even for the same injury type, raises questions about why we observe this variation and whether it comes from the design of workers compensation systems or other factors,” said John Ruser, president and CEO of WCRI, in a statement.

The states included in the study represent 79% of the workers compensation benefits paid in the United States, according to WCRI.

 

 

 

 

A New York bill to create a heart disease presumption for corrections officers and sheriff’s deputies participating in the New York State and Local Employees’ Retirement System was vetoed by Gov. Kathy Hochul on Friday.

The bipartisan measure, Assembly Bill 4607, would have amended New York’s retirement and social security law to state that any diseases of the heart contracted by corrections officers, correction supervisors, deputy sheriff patrol or deputy sheriff patrol supervisors should be considered presumptive injuries eligible for state benefits.  

Companion legislation in the Senate, S8558, also met the governor’s veto pen.

Sponsors of the measure said the presumption was necessary because corrections officers and sheriff’s deputies have a statistically high instance of death or disability from heart disease due the nature and stress of their jobs.

Under the bill, a heart disease diagnosis given to qualifying employees would have been presumptive evidence that the disability was incurred in the performance and discharge of their law enforcement duties unless proved to the contrary.

A veto message from the governor was not readily available, and the governor’s press office did not respond to a reporter’s inquiry.

One of the sponsors, Assemblyman William Colton, said he believes the governor vetoed the bill because of financial concerns.

“I believe that it was a budgetary question,” Mr. Colton said. “We may have to make a stronger case.”

Mr. Colton said a supermajority in both legislative chambers could theoretically override the veto, but it is more likely that legislators will have to revise the bill’s wording next year to make it “a little more palatable to the executive.” 

 

The North Carolina Supreme Court on Friday reversed a lower court decision that had barred death benefits to the widow of a university worker.

The high court, ruling in McAuley v. North Carolina A&T State University, said the North Carolina Court of Appeals erred in upholding the North Carolina Industrial Commission’s determination that it did not have jurisdiction over the matter because the widow filed an untimely claim for death benefits.  

Steven McAuley suffered a back injury in 2015 while working for North Carolina A&T University. He filed a workers compensation claim but died 10 days later.

His widow, Angela McAuley, sought death benefits in January 2018, but the Industrial Commission determined it lacked jurisdiction since the claim was not filed within two years after Mr. McAuley’s death.  

The Industrial Commission said a dependent’s death benefits claim differs from an employee’s workers compensation claim.

The Court of Appeals agreed with the commission.

In overturning the lower court ruling, the North Carolina Supreme Court said that when legislators amended state law they did so with a “clear intent that a separate claim for death benefits is not required and that an employee’s filing of a claim within two years after an accident satisfies any condition precedent to the Industrial Commission acquiring jurisdiction with regard to a subsequent claim for death benefits.”

The justices remanded the case to the Court of Appeals.   

California regulators on Thursday adopted non-emergency regulations designed to stem the transmission of the COVID-19 virus in the workplace.

The California Occupational Safety and Health Standards Board passed the COVID-19 prevention non-emergency regulations, which, if approved by the Office of Administrative Law, would remain in effect for the next two years.

The regulations mandate that employers provide and maintain a safe and healthy workplace for employees by taking active steps to mitigate COVID-19 exposure.

Among the updated regulations are mandates for companies to make COVID-19 testing available at no cost and during paid time to employees who experience close contact with someone who has the virus; review health department guidance to ensure proper ventilation for all indoor workspaces regardless of the size of the company; and maintain a written injury and illness prevention program that addresses COVID-19 as a workplace hazard.

The Office of Administrative Law has 30 days to review the proposed regulations before they become implemented.

The current COVID-19 Prevention Emergency Temporary Standards in California will remain in effect while the new proposed regulations are reviewed.

 

 

The Occupational Safety and Health Administration said Friday it has cited online retailer Amazon for failing to properly record and report work-related injuries and illnesses and proposed penalties totaling $29,008.

OSHA said it issued Amazon citations for 14 recordkeeping violations, including failing to properly record worker injuries and illnesses, misclassifying injuries and illnesses, not reporting injuries and illnesses within the required timeframe, and not providing OSHA with timely records.

The citations followed site inspections in July and August at warehouse facilities in Deltona, Florida; Waukegan, Illinois; New Windsor and Castleton, New York; Aurora, Colorado; and Nampa, Idaho.

OSHA said it opened a case against Amazon after receiving referrals from the U.S. Attorney’s Office for the Southern District of New York.

Amazon has 15 days to comply or contest the citations.