Tag: Workers Comp

A Savannah, Georgia, company that performs work in crawl spaces failed to de-energize power lines before sending a worker to dig a shallow drainage trench, resulting in his death by electrocution, the Occupational Safety and Health Administration said Wednesday.

OSHA, in proposing a $31,284 fine following the April 18 incident, cited East Coast Crawl LLC – operating as Crawlspace Medic of Savannah – “for not making sure to de-energize electrical lines before allowing employees to work and dig within the danger zone, which exposed workers to electrical shock hazards.”

East Coast Crawl also allegedly failed to train employees to recognize and avoid unsafe conditions and did not provide personal protective equipment for working in a confined space, OSHA said. It also failed to identify all permit-required confined spaces, according to the agency.

The company has 15 days to contest the citation.

An appeals court in Mississippi on Tuesday found that a steelworker with marijuana in his system did not suffer a compensable fall at work on the presumption that the drug caused his accident.

While working as a steel connector/iron worker for Cheyenne Steel Inc., Miles Meek in 2018 tripped and fell twenty feet from a beam, striking a man-lift on the way down and suffering what was an “an admitted injury during the course and scope of his employment,” according to Miles Meek v. Cheyenne Steel Inc. and American Interstate Insurance Company, filed in the Court of Appeals of Mississippi.

Mr. Meek, who injured his shoulder, hip and back, was on temporary total disability until late 2019, when he reached maximum medical improvement. He was eventually assigned a 2% impairment rating, which he argued was incorrect.

A drug test taken at the emergency room after the accident showed that he had marijuana in his system, which the company said it did not discover until two years after the accident.

Despite paying benefits, Cheyenne argued in court against the nature and extent of the injuries and the disability and pled intoxication as an affirmative defense to the claim.

Mr. Meek contended before an administrative judge that Cheyenne should have been barred from pleading intoxication as an affirmative defense “because the drug-test results submitted did not contain sufficient data to raise the presumption that his marijuana use was the proximate cause of his injury.”

In 2021 the judge found that Mr. Meek had failed to rebut the presumption of intoxication and denied and dismissed his claim. The full commission remanded the case to determine whether the claim was admitted because Cheyenne had paid benefits and whether the injury fell under the presumption of intoxication and, if so, whether he rebutted the presumption.

In response, the judge did not issue findings on the issue of intoxication but determined that because Cheyenne admitted that the injury occurred and paid benefits, the only issues to be decided were industrial loss of use and permanent disability.

Later in the year, the full commission reversed that order, finding that Mr. Meek’s intoxication was the “proximate cause of the injury,” and dismissed his claim.

The appeals court agreed, writing that the law “clearly states that if a drug test shows ‘the presence, at the time of injury, of any drug illegally used . . . it shall be presumed that the proximate cause of the injury was the use of a drug illegally.’

“Marijuana … was illegal at the time of Meek’s accident and no mechanism existed by which he could have legally ingested it.”

 

The Workers’ Compensation Insurance Rating Bureau said COVID-19 continues to account for a modest share of all California indemnity claims, and those filed in accident year 2021 were typically less severe than those from the prior accident year.

The WCIRB said in its updated study on COVID-19 claims that the severity difference in claims filed in 2020 and 2021 was partially due to a higher share of claims with incurred indemnity but no incurred medical loss. More than 40% of COVID-19 claims overall were for indemnity benefits with no medical provided, and most indemnity-only claims were small and closed quickly.

Average payments on an indemnity-only claim for COVID-19 totaled $2,398 in 2020 and $1,565 in 2021, WCIRB reported. Average payments on indemnity-only claims not involving COVID-19 were $8,426 in 2020 and $5,123 in 2021.

The bureau also reported that the 92,000 COVID-19 claims filed in 2022 already exceed the 81,000 claims filed in 2021 and could approach or even exceed the 119,000 claims filed in 2020.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

The Oregon Occupational Safety and Health Division on Monday announced scaled-back COVID-19 protections for employer-provided labor housing, removing provisions deemed “no longer appropriate to this stage of the pandemic.”

The changes, which went into effect Oct. 7, were in response to the state’s announcement of updated health guidance on Feb. 28 and direction from the Oregon Health Authority and followed a series of public hearings.

The changes included removing the air-purification requirement for spaces where people sleep, physical distancing monitoring, modified pandemic-related cleaning and sanitation practices, and rules on non-employer-provided transportation for labor housing.

An employee who chooses to wear a mask, face shield or other face covering, even when it is not required, must be allowed to do so, according to the changes.

Oregon OSHA said the changes “represent a significant removal of COVID-19 requirements and are a major step forward towards the full repeal of the rule. As stated in the rule, Oregon OSHA will repeal the rule when it is no longer necessary to address the COVID-19 pandemic.”

 

 

The Alaska Supreme Court unanimously upheld an award of benefits to a worker for his injuries from a fall despite his admission of using cocaine and drinking on the job and testing positive for drugs and alcohol after the accident.

The high court said intoxication is an affirmative defense and requires the payer to prove an accident was proximately caused by intoxication. The court said that in this case there was no proof that the worker’s drug use was related to his falling from a ladder after its supports gave way.

Virgil Adams was left permanently and totally disabled after falling about 30 feet while attempting to repair a roof. He admitted drinking beer and using cocaine before the accident, and he claimed the property owner had given him the drugs. Emergency room tests confirmed drug and alcohol use.

One doctor opined that with Mr. Adams’s level of blood alcohol, he “would have had impairment of balance and speech, reaction time and judgment.”

Neither the owner nor the trust that owned the property had workers compensation coverage, so the Workers’ Compensation Benefits Guaranty Fund was joined as a party in the claim. The fund contended Mr. Adams was not entitled to benefits because of his intoxication at the time of the accident.

The Workers’ Compensation Board said the weight of the evidence supported a conclusion that loose cribbing supporting the ladder had given way, which would have caused anyone to fall, so Mr. Adams’ intoxication was not a proximate cause of the accident.

The Workers’ Compensation Appeals Commission affirmed.

The Alaska Supreme Court said substantial evidence supported the board’s decision.

While the fund argued that Mr. Adams’ impaired judgment caused him to fail to inspect the cribbing closely before using the ladder, the court said this theory necessarily assumed the cribbing’s weakness was apparent or observable before the collapse because otherwise inspecting the cribbing would have had no effect on the accident.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

 

 

(Reuters) — Business groups will almost certainly file lawsuits in an attempt to delay or derail a rule proposed by the Biden administration on Tuesday that would limit companies’ use of independent contractors, experts said.

The proposal by the U.S. Department of Labor prompted immediate criticism from groups representing an array of industries and caused stocks of companies that rely on gig workers, such as Uber and Lyft, to tumble because of expectations that it will sharply raise their labor costs.

Business groups will lobby for changes to the proposal before it is finalized in the coming months but ultimately will likely have to make their case in court that the rule is invalid, legal experts said.

“There’s going to be years of litigation over this,” said Michael Lotito, a San Francisco-based lawyer who represents employers and business groups. “This has Supreme Court written all over it.”

The proposal says that when workers are “economically dependent” on a company, they should be classified as employees entitled to the minimum wage, overtime pay and other legal protections, and not independent contractors.

The current rule on worker classification, which was adopted during the Trump administration and is favored by business groups, says workers who operate their own businesses and are free to work for multiple companies can be considered contractors. Under that standard, far more workers can qualify as contractors, which studies estimate can cost companies about 30% less than employees.

The department’s sharp break from the Trump-era standard will likely be the focus of lawsuits challenging the new rule, which is expected to be finalized next year, according to legal experts. Federal law requires agencies to adequately explain their decision to withdraw and replace existing rules.

In a call with reporters on Tuesday, Solicitor of Labor Seema Nanda said the Trump-era rule was out of step with the standards applied by federal courts for decades and has increased the risk of worker misclassification.

Ms. Nanda said the new proposal makes clear that workers are independent contractors only when they are truly in business for themselves rather than relying on a company for work.

But Mr. Lotito and others said the department’s decision to completely scrap the Trump administration rule, rather than identify specific problems with it and aim to fix them, could make the new regulation vulnerable to legal challenges.

Any lawsuit would likely seek to block the rule from taking effect while challenges make their way through appeals courts, which could take years.

Businesses and trade groups are also likely to attack the substance of the new rule once it is finalized, arguing that the way it defines employment is inconsistent with federal wage law and creates uncertainty around the legal status of many workers, said Roger King, a veteran labor lawyer and senior counsel at the HR Policy Association, a business group.

Individual businesses, workers and trade groups could also bring narrower legal challenges to the new rule. Those lawsuits could argue that the rule cannot be applied to industries with their own set of regulations, such as trucking, or that it violates the constitutional rights of specific companies by targeting their industry.

A strict worker classification test adopted by California in 2019 was met with separate challenges by gig economy companies, the trucking industry and groups  representing freelance writers and photographers. So far, those challenges have failed.

 

(Reuters) — The U.S. Department of Labor proposed a rule on Tuesday that would make it more difficult for companies to treat workers as independent contractors, a change that is expected to shake up the business models of the ridesharing, delivery and other industries that rely on gig workers.

Shares in Uber and Lyft traded sharply down Tuesday morning.

The proposal would require that workers be considered a company’s employees, who are entitled to more benefits and legal protections than contractors, when they are “economically dependent” on the company.

The Labor Department said it will consider workers’ opportunity for profit or loss, the permanency of their jobs, and the degree of control a company exercises over a worker, among other factors.

Most federal and state labor laws, such as those requiring a minimum wage and overtime pay, only apply to a company’s employees. This means employees can cost companies up to 30% more than independent contractors that many industries have come to rely on, according to some studies.

U.S. Labor Secretary Marty Walsh said in a statement that businesses often misclassify vulnerable workers as independent contractors.

“Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages,” Mr. Walsh said.

The rule, which will take at least several months to finalize, would replace a Trump administration regulation that says workers who own their own businesses or have the ability to work for competing companies, such as a driver who works for Uber and Lyft, can be treated as contractors.

The new proposal adopts a broader definition of who counts as an employee, mirroring legal guidance issued by the Obama administration that was withdrawn by the Labor Department under former President Donald Trump.

More than one-third of U.S. workers, or nearly 60 million people, performed some sort of freelance work in the past 12 months, a December 2021 survey by freelancing marketplace Upwork showed.

Groups representing businesses including the U.S. Chamber of Commerce, National Association of Home Builders, National Retail Federation, and Associated Builders and Contractors had met with White House officials to lobby for a more business-friendly standard.

Those groups have said that any broad rule would hurt workers who want to remain independent and have flexibility.

But many worker advocacy groups have said that companies are increasingly misclassifying employees as independent contractors, depriving workers of fair pay and benefits to pad their profits.

The proposal will be formally published on Thursday, kicking off a 45-day public comment period.

 

WorkCompCentral, a sister publication of Business Insurance, presented awards Tuesday for outstanding contributions to the workers compensation industry during its annual Comp Laude Awards and Gala in Huntington Beach, California.

The event borrows its name from the Latin phrase “cum laude,” which means “with honor,” which is commonly used in academia.

The top two awards were given to people chosen by an advisory committee for recognition of career contributions and observed impact on the comp industry.

Dawn Watkins, of the Los Angeles Unified School District, won the Summa Comp Laude — “with highest honor” — award, also known as the David J. DePaulo Award.

Bryan Conner, of American Airlines, received the Magna Comp Laude — “with great honor” —award.

Additional awards were presented in 11 categories, including:

Applicant/claimant attorney: Bob Burke.

Defense attorney: Jennifer Morris Jones.

Doctor/physician (two winners): Dr. Robert Snyder and Dr. Melissa Tonn.

Medical professional: Silvia Sacalis.

Service provider/vendor: Eddy Canavan.

Claims professional: Jill Leonard.

Work comp philanthropy: Kristen Chavez.

Risk professional: Kurt Leisure.

Industry leader (two winners): Joseph Paduda and Shawn Crosby.

Injured worker: Victor Aguirre, Tyler Wilson, Brance Tully, Josh Shutts, Dave Repsher and Amanda Repsher.

People’s choice award, chosen by the audience using text-to-vote: Natalie Torres.

Finally, the inaugural “Be the Change” award — intended for the person who most embraces the mission and spirit of Comp Laude — was given to Patrizia Cassaniti.

The Comp Laude Awards and Gala concluded Wednesday.

For a complete list of 2022 nominees and finalists, click here.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

(Reuters) — Workers at Wyatt Bassett’s furniture factory in Virginia use powerful tools to churn out the company’s trademark dressers and headboards, so screening new hires for drugs is a no-brainer.

Or it used to be.

Virginia last year fully legalized marijuana — the first state in the South to do so. The upshot is that “being positive for cannabis does not necessarily disqualify you for employment,” said Mr. Bassett, CEO of Vaughan-Bassett Furniture Co., which has 575 employees.

On Thursday, President Joe Biden issued an executive order aimed at reshaping how the federal government treats cannabis.

The shift in policy should aid many companies. Faced with a shortfall in applicants, employers across the U.S. are balancing pressure to ease up on testing for a legal drug with concerns that this could impact safety and raise issues of liability.

The U.S. jobless rate ticked up to 3.7% last month, but it remains near a five-decade low.

“With the war for talent and the labor shortage, especially in some lower paying jobs, it’s tough to find and retain folks — so many are deciding to not test, except for safety-sensitive jobs,” said Julie Schweber, a senior knowledge adviser at the Society for Human Resource Management. Companies with multiple operations in different parts of the country face an added challenge, she said, because laws differ from state to state.

Biden’s order on Thursday grants a pardon for all prior federal offenses of simple marijuana possession. He also announced a review of how cannabis is “scheduled,” or classified, under federal law. The current schedule places it in the same class as heroin and LSD and in a higher classification than fentanyl and methamphetamine.

The challenge of balancing workplace safety and the growing prevalence — and legalization — of some types of drugs is especially acute for manufacturers and others who use dangerous equipment.

Last June, Amazon.com Inc. said positive tests for marijuana use would no longer disqualify people from jobs that are not regulated by the U.S. Department of Transportation, such as truck drivers.

The e-commerce giant — like many other employers — said it will treat cannabis like alcohol, even though traces of its use linger in the human body far longer and can show up on some types of tests after a worker is no longer impaired by its use. “We will continue to do impairment checks on the job and will test for all drugs and alcohol after any incident,” wrote former CEO Dave Clark, in a blog post at the time of the announcement.

Data from Quest Diagnostics, which handles testing for companies, shows a steady increase in positivity rates for marijuana tests over the past decade — coinciding with the wave of legalization. In 2012, only 1.9% of workers not subject to federally mandated drug testing requirements failed a pre-employment screening. Last year, that had grown to 4.1%. The jump in positive tests after accidents grew even more during that period, up from 2.4% to 6.7%.

The majority of Fortune 1000 companies have some type of screening in place, but many companies are dropping cannabis tests from the list, said Barry Sample, a senior science consultant who compiles Quest’s data. Still, Quest estimates between 30 million to 35 million employment-related drug tests are conducted in the U.S. annually.

Most of the tests Quest conducts use urine samples. Other tests rely on swabbing saliva or hair samples. “None of this testing can say whether someone is impaired,” said Mr. Sample. Rather, the tests will simply indicate the presence of the drug based on a pre-set threshold.

Cannabis use for medical reasons is now legal in 37 states, while recreational use is legal in 19. Quest’s data also shows that states that allow recreational use of cannabis have higher positivity rates.

Mr. Sample said many employers are shifting screening efforts to focus on drugs that remain illegal and where use in some industries also appears on the upswing. In manufacturing, for instance, Quest found the positivity rate clicked up last year for both methamphetamine and cocaine.

Insurance experts say it is too early to see if the changes will drive up insurance rates for companies that drop testing. “Nobody is going to come out and say, ‘We’re increasing premiums because you have more stoned workers on the job,’” said Mark Pew, a consultant who specializes in workers compensation insurance in Georgia. But if, over time, companies that have looser drug screening policies have higher accident rates than those who stick to tougher rules, that could change, he said.

Matt Zender, a senior vice president for workers compensation strategy with AmTrust Financial Services Inc., said one factor that may obscure or offset the impact of more drug use on the job is the general move toward safer workplaces.

“If you just look at claims per 100 hours of work, overall people are getting injured less often than they were in the past,” he said.

Meanwhile, companies continue to fine-tune their approaches on the issue. A California manufacturer of plastic bags, contacted by Reuters about their drug screening policies, was surprised to learn that his human resources department was automatically rejecting applicants who test positive for cannabis.

“My nephew would never get a job if I enforced that on him,” Kevin Kelly, CEO of Emerald Packaging Inc. in Union City, Calif., said in an email. He said he had now directed his hiring managers to drop the requirement, adding that workers at the factory are not allowed to be impaired on the job. Cannabis use is fully legal in California.

 

Medical payments per claim decreased more than 3% in the pandemic years 2020 and 2021 in half of the states studied by the Workers’ Compensation Research Institute.

The Cambridge, Massachusetts-based research organization studied medical costs for 2020 injuries with costs incurred through March 2021 in 18 states, finding that the reductions —following four years of stable or modest growth — “likely reflects factors related to the COVID-19 pandemic.”

“Temporary suspensions of nonemergency treatment and procedures, avoidance of care because of concerns about contracting COVID-19 and increases in the use of telehealth services contributed to changes in medical payments and utilization,” Ramona Tanabe, executive vice president and counsel for WCRI, said in a statement.

“In addition, other factors — such as the timing and severity of the pandemic, the speed of resuming nonemergency surgeries and procedures, the degree of reliance on hospital care, and state policies — influenced the differences in medical trends across states,” she said.

Of the states WCRI studied, Indiana appeared to see the largest drop in medical payments: a decline of 14% in 2020-21 for non-COVID-19 claims after growing 11% year over year in 2019. Other states saw modest decreases in the 4% to 5% range.