Federal review commission affirms trenching citation


The Occupational Safety and Health Review Commission on Wednesday affirmed two serious violations against a contractor that it said failed to provide trenching protections for workers at an excavation site in Austin, Texas, and did not have adequate protocols for discovering violations of its own safety rules.

After driving by one of J.D. Abrams L.P.’s work sites in 2019, an area director for the Occupational Safety and Health Administration sent two compliance officers to investigate “what appeared to be an employee working in an unprotected trench excavation,” according to Secretary of Labor v. J.D. Abrams LP.

OSHA issued a citation for two serious violations: one for an employee working in a trench excavation over five feet deep that was not protected from cave-in and another for a ladder that did not extend the minimum required three feet above the landing surface. The total proposed penalty for the alleged violations was $13,494.

The company appealed. Testimony revealed that the workers, who had been disciplined following the inspection, failed to use a trench box for protection because a trench box on the previous day had crushed a pipe, flooding an area. On the day of the OSHA inspection workers had been told to not use a trench box because of the mishap, according to documents.

The commission, in affirming the citations, said the company failed to prove it had not violated OSHA standards: “respondent does not dispute there was no support system, such as a trench box, in use and admits the walls of the trench were not sloped or benched…. Therefore, Respondent violated the standard’s requirement to use an adequate protective system.”

The commission further wrote that the “respondent’s claim there is no proof the ladder extended less than three feet above the surface is rejected. Therefore, the ladder did not comply with the requirements of the cited standard and the standard was violated.”

In both instances, J.D. Abrams asserted an “unpreventable employee misconduct defense,” of which the commission wrote that the company “failed to prove that it effectively took steps to detect violations of safety rules at its worksites.”

The commission, in ordering the full fine despite a request for reduction on “good faith because (the company) has a safety policy,” wrote that the safety policy was “incomplete.”

 

 



Source link

Amazon sues Washington workplace safety regulators


Amazon Inc. on Monday filed a lawsuit against the Washington Department of Labor and Industries, claiming that the state’s workplace safety protocols for citing, fining and abating hazards violates due process clause of the Fourteenth Amendment.

The lawsuit, filed in U.S. District Court Western District of Washington in Seattle, stems from a March 2022 inspection of an Amazon facility in Kent, Washington, in which the department alleged “several ‘serious willful’ violations, not of any specific workplace safety regulation but of the general duty of all employers to maintain a hazard-free workplace.”

The citation further alleged that Amazon had failed to address various alleged ergonomic hazards despite the absence of any specific ergonomic standards in either the Washington or federal occupational health and safety laws, according to the lawsuit.

Amazon said it challenged those allegations in state administrative proceedings, and that challenge remains pending, with an evidentiary hearing scheduled for early 2023, according to the complaint. 

The suit claims that per Washington labor law a company challenging a serious citation is required to abate the alleged hazards first, “before the state has made any effort to satisfy its legal burden to prove that a violation has occurred and before the company has a meaningful opportunity to challenge the allegations,” the lawsuit states.

Amazon further argued that “though the state has yet to prove any violation, if the company does not abate to the state’s satisfaction it can face fines of up to $7,000 per day, per violation. In this case, Amazon could face fines of up to $70,000 per day.” Amazon also claims the state can inspect its facilities and cite the company for the same violations at other facilities, and use the previously issued but still unproven violations as evidence of “willfulness” to justify imposing even stiffer penalties and additional compliance costs,” according to the complaint.

Amazon is seeking an injunction prohibiting the department from “requiring that Amazon implement costly, burdensome, and potentially unnecessary abatement measures until the (d)epartment carries its burden of proving that Amazon has, in fact, violated any safety or health regulation.”

A Department of Labor and Industries spokesman said the department is aware of the lawsuit and will be reviewing the filing with the Attorney General’s Office.

 

 

 

 



Source link

Governor approves contractor comp cover requirement


Some contractors will be required to carry comp coverage next year even if they don’t have any employees, under a bill signed by California Gov. Gavin Newsom on Friday.

S.B. 216 initially applies to all concrete, heating and air conditioning and tree service contractors. Starting in 2026, all contractors will be required to carry comp coverage unless they are organized as a joint venture under Business and Professions Code Section 7029 and have no employees.

The law requires the Contractors State License Board to suspend the license of any of the specified contractors if, between July 1, 2023, and Jan. 1, 2026, it finds a contractor had employees and did not have comp coverage.

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

 

 

 



Source link

Indiana commissioner approves 10.3% comp rate cut


Indiana Insurance Commissioner Amy Beard approved a 10.3% average workers compensation rate cut for policies incepting on or after Jan. 1.

The Indiana Compensation Rating Bureau recommended the double-digit cut based primarily on a long-term trend of frequency decreases and favorable experience in average claim costs.

Ms. Beard said in a statement that the 10.3% reduction will save state employers about $80 million next year.

Individual employers may experience a different rate change depending on their industrial classification and other factors.

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

 

 



Source link

Comp sector widens scope of recovery efforts


Much of what directs the trajectory of a workers compensation claim has little to do with the claim itself — the injury, the prognosis — and much to do with the claimant’s everyday life, such as where they live or how much money they have in the bank.

Experts say focusing on the so-called “social determinants of health” of an injured worker has the potential to drive better outcomes for injuries and is in line with “whole-worker” health and advocacy trends in workers comp in recent years. 

“We all said, ‘We need to be better advocates,’” said Kimberly George, Chicago-based global head, innovation & product development, at Sedgwick Claims Management Services Inc.

“Then it really got into ‘well, how do we do it?’” she said.

“Do they have ambulatory barriers? Food insecurity? Language barriers? Health literacy? Do they live in an area that’s prone to crime and violence? Do they have transportation? What are their living conditions? All of those things are very interconnected” when it comes to recovering from an injury, said Mariellen Blue, Wayne, Pennsylvania-based national director of case management services at Genex, a division of workers comp services conglomerate Enlyte Group LLC. 

According to the American Hospital Association, 40% of a patient’s health is associated with socioeconomic factors and 10% is based on physical environment, while only 20% is connected to medical care. Aware of this issue, the Centers for Medicare & Medicaid Services this year adopted a coding methodology for tracking such issues as “problems related to upbringing” and “problems related to housing and economic circumstances.” Thirty percent is attributed to health choices.

Workers comp experts say the industry is catching on.

For a report released in August, Chicago-based managed care provider Rising Medical Solutions held a series of focus groups with employers, insurers, state funds and third-party administrators. It found that many believed training on societal risk factors “that go beyond the walls of the workplace, such as housing instability or food insecurity,” can help improve outcomes, as can applying “community resources and social interventions for injured employees with potential health disparities.” 

BI 1022 06AThe topic was discussed at the Workers’ Compensation & Risk Conference in Dana Point, California, in September, with panelists — a claims handler for a facilities management company whose claims mostly arise from janitorial work, a return-to-work specialist and a workers comp defense lawyer — stressing the importance of addressing social issues. 

It’s estimated that as much as 80% of an individual’s health is connected to factors related to the person’s environment, and a work injury can launch a chain of events that can hinder return to work, said panelist Rafael Gonzalez, a partner at Charlotte, North Carolina-based Cattie & Gonzalez PLLC, citing a common data point. 

When an injury occurs, “all hell breaks loose” in an unhealthy environment, he said. “We see that in our claims. Are they able to pay rent now? Because if they are not, then they are not paying attention to their claim. They are solely focused on, ‘I just lost the roof over my head.’”

Panelist Chad Beinschroth, Winchester, California-based claims manager at facilities management company ABM Industries Inc., said the loss of income that comes with an injury is often the No. 1 concern among injured workers. That loss and the inability to work sets off a “chain reaction” that can affect housing and financial security, he said.

“These are the conditions where people live, learn, work and play that affect their daily lives; that affects their health and their quality of life,” said panelist Debra Livingston, Tampa, Florida-based CEO of ReEmployability Inc., which provides return-to-work services for injured workers. 

That can translate into missed forms or missed appointments — costly issues for payers and employers that aim to rehabilitate injured workers, she said. 

“Asking why” can be the first step in understanding what is going on in an injured worker’s life outside of the injury, Ms. Livingston added. 

Ask “why they didn’t show up to a doctor’s appointment? Why they didn’t cooperate with return to work? Why are they not taking that medication? Ask them why,” she said. “There could be a plethora of reasons.”

Ms. George of Sedgwick said nurses and case managers, by applying better interview techniques, can pick up on specific aspects of social determinants of health and communicate those findings both to the doctor and to the adjuster. This can also help find solutions and apply resources for the worker, she said. 

“This is something TPAs can and are doing,” she said. Examples include finding temporary housing for workers who are recovering or sending meal kits to workers who live in so-called food deserts where getting to a grocery store is difficult, she said. 

Claims handlers who know more about an injured worker’s life challenges can help make available community resources for the injured worker, who may not realize that he or she could be eligible for government benefits such as disability or Social Security, the panelists in Dana Point said. 


Improving well-being of workers need not come at extra costs

While compensability is always a concern — an insurer or an employer isn’t typically willing to pay for factors that aren’t directly related to the claim — paying attention to outside issues can have benefits for payers, experts say.

“The fear has always been that we don’t want to address it because we don’t want to pay for it,” said Mariellen Blue, Wayne, Pennsylvania-based national director of case management services at Genex. 

“It’s not necessarily that the claims payer would ultimately be responsible for any costs associated (with solutions), but we’re looking at doing something to address these outside factors. Will that eventually, in turn, decrease the cost of claims?” 

Ms. Blue said she believes so.

Chad Beinschroth, a Winchester, California-based claims manager at facilities management company ABM Industries Inc. who’s walked injured janitors through the workers comp process, said listening and understanding, and explaining the process, go a long way and can keep claims from landing in litigation and the claimant leaving a job.

“They’re really worried about money, so it’s just natural for them to go to an attorney to get some type of legal help,” he said. “And then that just goes down a huge rabbit hole.”

“There’s no easy fix because it’s systemic at every single level and where do you start the focus?,” Mr. Beinschroth said, adding that issues of social determinants in health in a claim “can be death by a thousand cuts” for recovery.

“To be as successful as possible it has to be focused on customer service,” he said.

 

 



Source link

Remote exposures alter complexion of comp


With more people working from home, workers compensation has become a 24-hour exposure for employers, some experts say.

Estimates show an increase in the number of employers allowing telecommuting or hybrid arrangements since the COVID-19 pandemic, and alleged work-from-home injuries are resulting in comp claims.

BI 1022 07ADetails of contested claims show the difficulties employers face in determining their validity. At least one state has passed a law aimed at adding clarity to the issue. 

“When a person works in an office, they’re going to the office at a set period of time. But when you’re working from home, you may get up at 10 o’clock and do work, or you may do it at one in the morning or two in the morning. There’s no real arbiter of stoppage of what you can and can’t do within a timeframe,” said Patrick Edwards, Chicago-based area senior vice president and workers compensation practice leader for Risk Placement Services Inc. 

RPS, a unit of Arthur J. Gallagher & Co., last month released a report identifying work from home as one of the issues that will have an impact on workers comp in the future; that expanded exposure, less employer control of the environment, and mental health are concerns. Working from home will also affect the coming-and-going workers comp rule in most states and is likely to complicate investigations because of the lack of witnesses, according to the report.

Anticipating more people working from home was the reason behind a first-of-its kind law in Ohio that specifies what constitutes an injury occurring in one’s home. The law, which went into effect Sept. 23, provides parameters for what constitutes a work-related injury outside of the employer’s physical domain, an issue that has been raised in courtrooms across the country with varying results.

H.B. 447, crafted in response to the pandemic and passed earlier this year, states that unless conditions are met compensability is barred for “an injury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer.” 

The law states that three factors must apply for an at-home injury to be compensable: that the injury or disability arose out of the worker’s employment; that it was caused by a special hazard of the employment activity; and that it was sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer. 

Philip Fulton, a Columbus, Ohio-based attorney who represents injured workers under the Philip J. Fulton Law Office, helped draft the law on behalf of the Ohio Chamber of Commerce. 

“The language only codifies what I had to prove previously for one of my clients who was injured while working from home,” he said. “I believe because of COVID and the new reality that many now work from home, the chamber wanted some assurance on the elements for a compensable injury if injured at home.”

In creating the bill, Ohio lawmakers looked at other states and cases in which work injuries occurred at home, finding that the laws and rulings varied — what was compensable in one state was found not compensable in another, according to Mr. Fulton. He said Ohio’s law makes compensable cases fact-specific: for example, a person tripping down the staircase of their home en route to feeding their dog, versus a person tripping while trying to retrieve something work-related.

Timothy Zix, a partner and chair of the workers compensation practice group at Taft Stettinius & Hollister LLP in Cincinnati, said the Ohio law is “good news” for employers. While there has not been much case law in Ohio stemming from employees injured while working from home, a scan of cases nationwide shows that incidents do occur, and the claims are often litigated. 

Among the examples Mr. Zix cited was a woman in Tennessee working at home who was attacked by a neighbor and whose injury was found to be not compensable. By contrast, injuries suffered by a telecommuting man shot in his home in New York during a robbery were deemed compensable. 

In another case, a man in Utah slipped and fell while shoveling snow in his driveway in an effort to retrieve a FedEx package; his injuries were found to be compensable. 

And then there’s the worker who trips on a pet — which has happened in several states with varying results, according to attorneys. 

“It’s just kind of all over the board,” Mr. Zix said. “Ohio is trying to give employers a little bit of help with the special hazard requirements” for an injury to be found in the course and scope of employment.

The law would not apply to repetitive stress injuries, such as carpal tunnel, according to Christopher Ward, an attorney with Calfee, Halter & Griswold LLP in Columbus.

“In Ohio, carpal tunnel syndrome is typically handled as an occupational disease instead of an injury,” he wrote in an email. “There can be traumatic (carpal tunnel syndrome), which could be classified as an injury and come under this new language/law which changed the definition of injury, but typically it is handled as an (occupational disease), which has its own test to establish (compensability).”

 

 

 



Source link

Employers left without guidance as COVID protocols wane


Employers are starting to question what to expect in the coming months as rigid COVID-19 guidelines for workplace safety are scaled back, legal experts say. 

In a surprise move on Sept. 23, the U.S. Centers for Disease Control and Prevention removed its universal masking requirements in health care settings, creating uncertainty for employers who are still waiting on a permanent COVID-19 standard for health care workers. The U.S. Occupational Safety and Health Administration had indicated it would issue a standard by the end of the year.

OSHA has not updated any of its COVID-19 guidelines since August 2021 and has no update on the process for creating the health care standard, an agency spokesperson wrote in an email. A temporary health care worker safety standard was in place for six months in 2021, as is permitted by law. 

Employers in other settings are also grappling with the loosening of requirements. 

“That’s a problem … there’s not a lot of guidance that has been provided to employers at all,” said Adam Young, Chicago-based partner at Seyfarth Shaw LLP. 

The approach in some ways is “figure it out on your own,” he said, adding that employers are having to develop precautions and protocols consistent with guidance from the CDC and industry standards. 

“As it has been since the beginning of COVID, we are still in a fluid phase,” said Alka Ramchandani-Raj, shareholder and co-chair in the workplace safety & health practice group in Littler Mendelson P.C.’s Walnut Creek, California, office. 

And much depends on the geographical region, she added. The California Department of Industrial Relations, for example, has kept many COVID-19 protocols in place under its own Cal/OSHA program. Oregon’s OSHA program, meanwhile, scaled back protocols. 

Industries also differ on what protocols to follow.

The health care industry, which was told by the CDC to require masking only if COVID-19 case counts are high or if workers are caring for sick patients with COVID-19 or other respiratory illnesses, still must follow OSHA’s respiratory protection standard, Mr. Young said. “They must implement a compliant respiratory protection program” when working with patients in some settings, he said. “That includes fit testing, medical evaluations and selecting the correct respirator.” 

One thing is also certain: expect some OSHA activity, experts say, adding that most inspections during the pandemic have been the result of employee complaints. With flu season arriving, and the unknown future of COVID-19 case counts, employers should remain vigilant, they say.

“When people believe that there are hazards in the workplace, they’re much more likely to call in complaints to OSHA,” Mr. Young said, adding that a large percentage of OSHA citations are the result of complaints from large unions and their employees. 

“If we’re coming into a season where there will be more respiratory illnesses, we anticipate additional OSHA complaints and OSHA inspection activity,” Mr. Young said. 

Melissa Peters, a shareholder at Littler Mendelson, said employers “always have the threat of complaints … There was a real driving fear (for employees) during the thick of the pandemic.”

Yet “now I think there’s less fear on the part of employees because we have been through this. A lot of people have gone back to work. Our kids have gone back to school,” she added.

Will OSHA complaints and visits result in citations? Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP, is doubtful. 

OSHA’s ability to cite under the catch-all general duty clause, which requires employers to provide a workplace free of hazards, for COVID-19-related violations “has certainly been undercut recently” following President Joe Biden “publicly declaring that the pandemic is over, and signaling that masking is no longer necessary,” Mr. Brought wrote in an email. 

Scaling back requirements in health care settings was another sign, he added. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Source link

Connecticut to consider 3% rate cut for voluntary market


The National Council on Compensation Insurance has recommended a 3% average reduction in workers compensation premium rates for the Connecticut voluntary market.

Proposed changes to voluntary loss cost level will vary by industry group, with NCCI proposing an average decrease of 0.7% for the miscellaneous sector and a 5.3% reduction for the office and clerical sector. NCCI is recommending a 4.6% cut for contracting, a 2.8% reduction for goods and services and a 2.5% decrease for manufacturing.

NCCI is not proposing any change to the current assigned risk rate level.

The new loss costs and unchanged assigned risk rate would apply to policies incepting on or after Jan. 1.

Eric Gjede, vice president of public policy for the Connecticut Business & Industry Association, in a Sept. 29 letter recommended that the state Insurance Department adopt NCCI’s recommended cuts.

“The proposed rate reduction partially reflects changes in the workplace as a result of the COVID-19 pandemic, including increased remote work and a reduction in business travel,” Mr. Gjede wrote. “More importantly, reductions in certain types of injuries and claims demonstrate that Connecticut employers continue their commitment to creating the nation’s safest possible working conditions for employees.”

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

 

 



Source link

Alaska high court OKs attorneys fees in comp commission awards


The Supreme Court of Alaska on Friday clarified that Workers’ Compensation Appeals Commission awards can come with enhanced attorneys’ fees for claimants who are successful in their appeals.

The ruling in Sandra J. Rusch and Brenda Dockter v. Southeast Alaska Regional Health Consortium and Alaska National Insurance Co. is a consolidated appellate decision based on the commission’s decision to “award far less in attorney’s fees than the claimants sought” in their cases stemming from workplace injuries.

The court reversed an earlier finding that the Alaska Workers’ Compensation Act does not authorize the commission to enhance awards with applicable attorney’s fees for injured workers and found that “(b)efore the Commission was created, we allowed enhanced attorney’s fees in workers’ compensation appeals.”

The Commission’s main objections to the claimants’ request for enhanced fees were that we had not mandated enhanced fees in appellate workers’ compensation cases and that they were inconsistent with legislative intent that the “workers compensation claims be resolved, in part, at a cost reasonable to the employer.”

The Commission also expressed concern that enhanced fees might dissuade employers from appealing Board decisions, presumably because the fees awarded to a claimant successfully defending those decisions might be higher. The Commission also worried that enhanced fees would encourage appeals of “minor or even frivolous issues” because if the claimant were successful on the minor issues, the attorney “potentially would receive a very large [fee] award,” according to the court record.

The state’s highest court disagreed, writing, we “have previously decided the legislature intended attorney’s fees in Commission appeals to be comparable to fees awarded under the appellate rules; we thus hold that the Act authorizes enhanced awards for work before the Commission as a means of accounting for the contingent nature of representing workers’ compensation claimants.”

 

 



Source link

Exit mobile version