Tag: Workers Comp

The 10th U.S. Circuit Court of Appeals Tuesday denied a coal company’s appeal challenging workers compensation benefits awarded to an injured miner.

Ronald Fossat, who has since died, filed for black lung benefits in 2013 and was awarded benefits in 2021 after a years-long administrative review process, according to the ruling.

His former employer, Sunnyside Coal Co., appealed the award to the U.S. Department of Labor Benefits Review Board, which affirmed the benefits.

Sunnyside then appealed to the 10th Circuit, which found the company’s arguments meritless.  

Mr. Fossat, who smoked cigarettes for many years, claimed he developed respiratory difficulties due to coal dust exposure during his 24-year career as a miner. Sunnyside contested Mr. Fossat’s claim of total disability, but an administrative law judge ruled in his favor.

The 10th Circuit said Sunnyside failed to disprove legal pneumoconiosis and failed to establish that that no part of Mr. Fossat’s respiratory problems were due to coal dust exposure.  

 

 

DENVER — Addressing workplace mental health challenges is the missing link in many employers’ plans to tackle the physical hazards that could lead to injuries and prolonged workers compensation claims, according to a panel of health and safety experts who discussed the current state of so-called psychosocial hazards.

Among the panelists who spoke last week at Safety ’24, the American Society of Safety Professionals’ annual conference, Carrie Patterson, executive vice president of human resources consultancy Patricia Omoqui Enterprises Inc., drew a comparison between a physical injury that might keep a worker off the job 13 weeks and the compounding that happens when there’s a psychosocial or “toxic” issue in the workplace.

“You leave for six months because the work environment is so challenging for you,” said Ms. Patterson, who is based in Glastonbury, Connecticut, and provides psychological counseling to companies aiming to create positive work environments.

Panelist David Daniels, Atlanta-based president and CEO of safety consultancy ID2 Solutions LLC, called the issue of creating mentally safe work environments “seminal” to safeguarding against physical risks.

“Psychosocial hazards … are just as real as physical hazards,” he said.

Psychosocial safety “informs how workers react to things,” he said. “It informs how they respond to things. It informs how they do things, what’s important to them and what’s not.

“What we as safety professionals have done, not intentionally, is focused so much on the physical aspect of the job. It’s kind of how the law is written, right? The (Occupational Health and Safety) Act has 19,700 words or so; it mentions ‘psychological’ twice. It wasn’t built to be concerned about how people feel at work.”

Ken Clayman, McLean, Virginia-based senior lead technical specialist with business consultant Booz Allen Hamilton Holdings Corp., said companies can use the same tools they use to identify physical hazards to address those considered psychosocial.

“We’ve got pretty good mechanisms in place on how to deal with the physical hazards already; that’s what most of us are doing on a day-to-day basis. But are we really dealing with a person’s mental state or condition as a result of their work activities and the workplaces that they are attending?” he said.

“We can go around and take a look at our operations, take a look at what the people are doing, and we can identify what may be of a psychological concern, as much as we can look at what is of a physical concern. We have to start looking at the people and looking at the conditions and the environments that they’re working in.”

Kahlilah Guyah, Austin, Texas-based founder and principal consultant at EHS Compliance Services Inc., said companies’ leaders can apply some strategies that are “supportive” and “responsive” to the mental needs of their workers, a practice that can be incorporated throughout an enterprise.

One practice is to support workers emotionally, “indicating that we are here and we care about the people,” she said. “This is where we set the example.”

A law passed last year that allows injured workers to audio and video record independent medical exams is unconstitutional because a section of the law prohibits workers from posting the IME recordings to social media, the Court of Appeals of Washington ruled Monday.

The appeals court sided with 10 injured workers who sued the state of Washington, the director of the Department of Labor and Industries and the state attorney general over the 2023 statute.

The plaintiffs challenged the constitutionality of the law, contending that it abridged free speech; a trial judge subsequently agreed and granted summary judgment to the workers.

The state, on appeal, argued the social media restriction is a “permissible time, place, or manner restriction,” but the appeals court said the law is unconstitutional because “the statute forecloses workers’ access to social media” and is “an unconstitutional prior restraint.”

Independent medical exams are used by the state to determine whether employees injured on the job are entitled to workers compensation benefits.

Workers who violated the 2023 ban on posting IMEs to social media faced up to a $1,000 fine.

Ruling on the case, which was a matter of first impression, the appellate court wrote that “it is clear that the act of posting a recorded IME to social media is expressive conduct warranting free speech protections.” 

 

The U.S. Department of Labor on Monday announced that it won a permanent injunction in federal court in a case alleging that an employee of an eye doctor practice was illegally fired for raising workplace COVID-19 safety concerns.

The DOL had filed suit in March 2022 against ophthalmologist David Kwiat and his practice, Amsterdam, New York-based Kwiat Eye and Laser Surgery PLLC, over claims that the business violated federal whistleblower laws when it fired the worker, who had voiced concern about the practice’s failure to implement state-mandated COVID-19 protocols.

U.S. District Court Judge Anne Nardacci, sitting in the Northern District of New York, determined that the defendants illegally retaliated against the employee based on protected activity.

The judge issued a permanent injunction prohibiting the defendants from committing future violations of the Occupational Safety and Health Act’s anti-retaliation provisions and mandated that the business post notices for employees stating that they would not be discriminated against for raising workplace safety concerns.

The business was also ordered to pay a small contempt fine.

The DOL said Judge Nardacci will hold a hearing to determine whether the doctor and his practice must pay damages to the fired worker for lost wages and benefits, and whether the worker is entitled to additional compensation and other forms of relief. A date for the hearing was not given.

 

 

The U.S. Occupational Safety and Health Administration said Monday that it cited an Illinois carpentry contractor for failing to address fall hazards.

OSHA cited Palos Park, Illinois-based Dromin Development LLC for two “repeat” violations, one “willful” violation, one “serious” violation and one “other-than-serious” violation and proposed $268,309 in penalties for failing to provide safety equipment and training to employees building a new home in Frankfort.

Inspectors visited the construction site in March and found that the company permitted employees to work at heights greater than six feet without required fall protection. The agency said workers were also found to be working without hard hats and using ladders improperly.

OSHA said Dromin Development, which has been cited seven times since 2013 for similar violations, still owes more than $114,000 in unpaid penalties for past “willful” and “serious” violations.

The company has 15 business days to contest the latest citation and proposed penalties.

The family of a worker who was electrocuted at a Tesla Inc. factory in Austin, Texas, earlier this month has filed a wrongful death lawsuit against the electric vehicle manufacturer.

The estate of Victor Gomez Sr. claims that Tesla’s negligence caused the workplace death, which occurred on Aug. 1 at the construction site of Tesla’s planned Gigafactory global headquarters.

Mr. Gomez, a licensed journeyman electrician employed by Belcan Services Group LTD, was brought in to inspect the electrical panels at the site, according to the lawsuit, filed Aug. 6 in Travis County District Court.  

The lawsuit says that the electrical panels were supposed to have been de-energized on the day of the incident, but that one of the panels was still energized.

Mr. Gomez was subsequently taken to a hospital, where he was pronounced dead shortly thereafter.

The lawsuit says that the plaintiffs attorney attempted to contact Tesla to perform an independent inspection of the property “before any evidence is repaired or altered in any way,” but that Tesla has thus far failed to respond to the request.

Mr. Gomez’s estate seeks compensatory and punitive damages, as well as a temporary injunction granting the plaintiffs inspection access to the Tesla factory. 

 

 

 

The National Council on Compensation Insurance has filed a proposed workers compensation loss cost decrease of 9.1% effective January 2025 for West Virginia.

The proposed premium reduction is expected to result in a projected $15 million in savings for West Virginia employers, according to the office of Gov. Jim Justice, which announced the news on Friday.  

In addition to the proposed NCCI loss cost decrease, another 10.4% proposed rate decrease was announced for the assigned risk market, which has been filed with the West Virginia Offices of the Insurance Commissioner, according to the governor’s office.  

“The latest filing represents the 20th consecutive year that we have decreased workers compensation in West Virginia,” Gov. Justice said in an administrative briefing announcing the news. “Over the entire time, those 20 years, the cumulative dollars that we have absolutely decreased is now in excess of $481 million.”

The governor said the news shows that West Virginia has succeeded in improving workplace safety and efficiency in payouts to insurers. 

 

 

The U.S. Occupational Safety and Health Administration said Friday that it has hit global shoe manufacturer Addidas America Inc. with additional penalties for failing to correct earlier identified fall hazards at one of its manufacturing facilities.

OSHA proposed new penalties of $396,377 after a January inspection at the company’s Chester, New York, facility found that Adidas failed to submit required proof to the agency that it had installed guardrails or similar protections to keep employees safe while working atop a mezzanine.

Adidas was cited in March 2022 after its original 2021 inspection found the absence of guardrails and an unsafe ladder exposed workers to falls. OSHA originally proposed $17,403 in penalties.

OSHA said Adidas initially agreed to correct the hazards, but that it hadn’t done so by the time of January’s follow-up inspection.

Adidas has 15 business days to contest the latest proposed penalties. 

 

 

DENVER — From smaller risks faced by those working in retail outlets to those risks experienced in construction, warehousing and food-processing enterprises, among the Occupational Safety and Health Administration’s priorities are repeat safety noncompliance and encouraging workers to speak out.

Assistant Secretary of Labor for Occupational Safety and Health Doug Parker spoke Friday at Safety ’24, the American Society of Safety Professional’s annual conference, giving attendees a bird’s eye view of the agency’s priorities in recent years. In addition to more formalized and ongoing rule-making, such as that addressing heat risks and infectious diseases, the agency has expanded enforcement targets.

One area of concern has been zeroing in on businesses with repeat safety issues — such as workers experiencing amputations due to unguarded machinery — and aiming to work with employers to reduce risks to workers, Mr. Parker said.

“We are taking a more comprehensive approach where we are seeing the same issues over and over again, and in planning we’re taking more aggressive interventions to ensure maintenance and improve safety,” he said.

With falls from height among the most dangerous risks faced by construction workers in particular, accounting for a lion’s share of worker deaths annually, “we are really hoping that we can finally bend the curve on what is really an epidemic of noncompliance (with fall protection) and that is the problem that we have year in and year out with workers dying needlessly because their employer has not properly implemented fall protection,” he said. 

Trenching — another deadly hazard causing hundreds of deaths annually — is another concern that has led the agency to seek criminal prosecutions for repeat offenders, he said.

The agency in recent years also expanded its Severe Violator Program, targeting not just high-hazard industries, he said. “And there was some criticism of that initially, that we were not really allocating our resources properly.”

The move to look at all industries with multiple and similar citations has led to progress, he said, citing the example of Dollar Tree and Family Dollar stores, which have faced more than a million in fines overall for such issues as warehousing materials.

“As a result, those companies may have made significant safety investments or will,” he said. “They are reviewing their logistics and inventory controls. They’re implementing more worker participation and rapid response programs.”

Whistleblower protections are another focus. Over the past year and a half, the agency has reduced investigation timeframes from a high of more than 300 days to now under 200 days on average, he said.

He says employers must have a “system in place where workers can speak up,” he said.

“You cannot assume that they will (speak up) even if you have no intention of ever retaliating against someone,” he said. “They may very well not speak out because they’re afraid about their job. …You have to make it clear to them, again and again and again. And you have to have procedures and processes that ensure that they cannot only speak up, but that it is your expectation that they will.” 

 

DENVER — Most workplace fatalities have similar core elements that employers in high-risk industries can study to prevent similar disasters, according to industrial safety experts.

A push to study root causes of workplace fatalities grew out of a deadly methane gas explosion in 2023 in a coal mine in Kazakhstan, operated by ArcelorMittal S.A., a steel and mining company based in Luxembourg, according to Mike Dwyer, the company’s corporate health, safety & security director, who spoke Thursday at Safety ’24, the American Society of Safety Professional’s annual conference. 

“We wanted to build this model together so we can predict where the next fatality is going to happen,” said Kitchener, Ontario-based Mr. Dwyer, who worked to create a root-causes model with co-presenter Peter Susca, Wethersfield, Connecticut-based principal at Operational Excellence LLC, a consultancy that does business as OpX Safety.

The pair looked at other fatal incidents and found similar factors, such as overall organizational issues, including profit-centeredness and not investing in equipment; poor management and accountability for safety; a work culture comfortable with hazards; and bad operational decisions.

In the case of methane explosions in mines, not allowing ample time for the gas to release before sending workers into a mine — a business decision usually made to compress a work timeline — is a contributing factor, said Mr. Dwyer, who found 26 contributing factors that can lead to disasters.

Mr. Dwyer and Mr. Susca said fatalities in the workplace come down to six elements: the presence of a hazard; exposure to the hazard while working; ineffective controls when facing the hazard; an organization not assessing those three elements; an immediate change in the work process, such as a problem with equipment or staffing; and poor overall management.

Mr. Susca said it is common for employers to blame workers when there is a fatality — or for companies to not address hazards and possibilities until someone is killed. Usually, the issue is in the organization, he said.

“When you look at organizational factors, they remain the same,” Mr. Dwyer said. “It’s the lack of investment. It’s procurement, making decisions that are not in alignment with safety. It’s bringing contractors in at cheap prices, not having the best contractors. It’s all these types of decisions.”