Tag: Workers Comp

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Workplace-related mental injuries have been a top focus of legislation introduced this year that would affect workers compensation laws, according to a report released Wednesday by the National Council on Compensation Insurance.

As of July 31, Boca Raton, Florida-based NCCI tracked 809 state and federal bills that could impact workers compensation, with 143 enacted.

Ten states enacted laws related to mental injuries, according to an interactive dashboard linked to NCCI’s report. Most of the laws either expanded or provided a mental health presumption to first responders.

Two states expanded eligibility to other workers: In Washington nurses are now eligible to file workers compensation claims for post-traumatic stress disorder by presumption and in Connecticut all workers who witness an event that affects their mental health are able to file claims under certain conditions.

In addition to mental injuries, medical cost containment has been a top legislative theme this year, including measures to provide or enhance medical fee schedules and treatment guidelines. New laws addressing claims reporting requirements and court hearing rules and procedures have also been a focus, according to the report.

The number of injured workers using topical medications rose 10.3% in 2022, according to a drug trends report released Wednesday by Enlyte LLC.

The increase was in line with a four-year trend of gradual increases in doctors prescribing topical creams and agents to workers, mostly for pain, according to the report, which was based on the workers compensation services provider’s own data.

The report said 126 of every 1,000 injured workers were prescribed topical analgesics to treat pain, up 7.6% from 2021.

It also pegged drug “compound kits” and “combo packs” as an area to watch. Such co-packaged drugs billed in one unit represent an area of rising costs in comp, with many prescriptions coming from out-of-network.

While representing less than 1% of all drugs prescribed to injured workers, such packs saw an 89.5% jump in costs in 2022.

 

Increasing school violence across the country raises questions about whether educators who are injured and eligible for workers compensation can sue their employers.

And a suit filed by a teacher at a school in Virginia earlier this year seeks damages outside of the comp system for her injuries.

The American Psychological Association says that violent incidents against teachers began to steadily rise during the COVID-19 pandemic. An APA report examining survey findings regarding violence against educators between 2020 and 2021 showed that 49% of U.S. teachers said they wanted to quit their jobs or switch schools because of workplace violence. 

A recent case in Newport News, Virginia, involved a former elementary school teacher who was shot in January by a 6-year-old student who brought a gun to school. Abigail Zwerner, who was badly injured after being shot in the hand and chest and has since left her job, filed a lawsuit in April seeking $40 million in damages, claiming the district didn’t do enough to protect her. The case, Abigail Zwerner v. Newport News School Board, is pending in the Newport News Circuit Court.

In her suit, Ms. Zwerner, who was 25 when she was shot, alleges the district knew the student had a history of random violence and that on the day of the shooting, despite being informed by other students that the boy claimed to have a gun, district employees failed to locate the firearm during a backpack search.

The suit also says an administrator prohibited an additional search of the boy; the boy retrieved the gun from a pocket before shooting the teacher.

The district said the incident falls under Virginia’s exclusivity provision limiting injuries that occur in the workplace to the comp system.

“Teaching and supervising students in her first-grade class was a core function of Plaintiff’s employment,” attorneys for the Newport News School Board wrote in court documents. “Thus, Plaintiff’s injuries arose out of and in the course of her employment.” 

A Newport News Circuit Court judge is expected to rule in October on whether the suit can proceed and has allowed both parties to proceed with discovery.

Anne Lahren, an attorney with Virginia Beach, Virginia-based law firm Pender & Coward P.C., which represents the school board, said she understands the frustration over the case but said that the threshold to bypass workers comp wasn’t met and that other parties could be liable instead.

“Workers comp (law) simply bars a tort lawsuit against the employer. It does not in any way impact the injured party’s ability to sue the shooter, but in this case you have a 6-year-old, so the parent,” she said.

Virginia case law is “unusually strict” when it comes to comp exclusivity, even in seemingly exceptional cases that might fall outside of comp in other states, said J.H. Verkerke, a Charlottesville-based law professor at the University of Virginia School of Law. 

“You could easily imagine a judge being sympathetic to the claim and desirous of offering something more than the relatively minimal compensation available through the workers comp system,” he said.

Exclusive remedy provisions vary by state but generally hold that employees cannot sue employers for injuries sustained at work. In return, their medical costs and lost wages are covered by workers comp.

In some states, exclusivity does not apply if a worker can show he or she was intentionally harmed by their employer, said John Geaney, co-chair of the workers compensation practice at the Mt. Laurel, New Jersey, law firm Capehart Scatchard PA. But even if a civil suit is permitted to go forward, the outcome is not guaranteed, he said. 

“Suing is one thing; winning is another,” he said. “People sue for intentional harm but almost always lose.”

David Langham, Tallahassee-based deputy chief judge of compensation claims for the State of Florida, said that whether an injured teacher in his state could sue outside of comp is a difficult question.

“The question is going to be: Is the violence part of the employment, or is the violence merely imported into the work environment?” he said.

In Florida, for a teacher to bypass comp exclusive remedy, he or she would have to prove an “intentional act” by the employer, Judge Langham said.

“That’s beyond even gross negligence,” he said. “It’s very, very hard in some of these states to get out of the comp system.”

A Fostoria, Ohio-based vinyl tile manufacturer listed in the Occupational Safety and Health Administration’s Severe Violator Enforcement Program faces $545,853 in new workplace safety fines following a February incident that led to an amputation.

Nox US LLC, a subsidiary of Seoul, South Korea-based Nox Corp., is accused of not having required safety guards in place that would have protected the worker’s hands.

The company was cited for three willful violations, two repeat violations, three serious and two other-than-serious violations in connection with various safety lapses, according to an OSHA statement issued Thursday.

OSHA said it cited Nox US for similar violations in October 2022 and proposed $1.2 million in penalties, a finding currently being contested by the company.

Since 2017, 14 workers have suffered injuries Nox US, including numerous cases of “severe amputations,” according to OSHA, which said it opened another inspection following a July incident in which a worker suffered chemical burns. The outcome of that inspection is pending.

 

An administrative law judge with the Occupational Safety and Health Review Commission on Friday affirmed a serious fall-protection citation against a Rochester, New York, roofing company that failed to adequately warn employees of conditions that led to a worker being seriously injured in a fall.

The $8,848 fine issued to Elmer W. Davis Inc. stands after the judge found that a supervisor’s placing plywood over a depression in a roof at a warehouse in Rochester in September 2020 did not sufficiently warn workers that the area was unsafe, according to Secretary of Labor v. Elmer W. Davis Inc. 

The company claimed that a supervisor had told workers to put construction cones around the plywood to warn of the hazard but that the cones were never placed there. 

“The totality of the evidence establishes that (the company) failed to exercise such reasonable diligence by inadequately informing employees of the precise location of the unsafe depression on the roof while nevertheless determining that the roof possessed the requisite strength and structural integrity to allow the employees to resume working on the roof after covering the depression with the unmarked and unsecured sheet of plywood,” the judge wrote.

 

 

 

Editors’ note: As workers compensation watchdogs, we have so many questions here.

Nobody will argue that keeping employees healthy isn’t a good thing, but paying workers to exercise is a trend worth noting.

As documented in a CNBC.com article, Tampa, Florida-based meal-prep company Nutrition Solutions is giving its staff paid time to work out on Wednesdays and Fridays. The catch is they get to clock in before they get their sweat on.

“If they come to those workouts, they are on the clock. They’re getting compensated whatever their pay rate is to be there,” Chris Cavallini, CEO of Nutrition Solutions, told a news reporter.

“It’s basically logged into their normal pay, just like the regular hours they would work. It works exactly the same,” he said of the exercises that range from body-weight calisthenics, outdoor runs and even “mental toughness training” such as body plunges in ice water.

 

 

A Pennsylvania appellate court upheld a Workers’ Compensation Appeal Board decision affirming a comp judge’s ruling granting benefits to a former Philadelphia special education teacher who was injured after being struck by a student in her abdomen while she was pregnant.

The Commonwealth Court Tuesday ruled the comp judge and board correctly applied a physical/mental injury standard to the teacher’s claim petition, and that the awarding of ongoing total disability benefits was proper, as was an order forcing the School District of Philadelphia to pay penalties over its failure to offer timely compensation.   

The teacher, injured in May 2019, one month after starting her job, alleged she sustained an abdominal contusion and a psychological injury. Her employer accepted the physical injury claim but denied the mental injury.

The school district argued the comp judge ignored an independent medical evaluator’s testimony that the teacher didn’t meet the criteria for post-traumatic stress disorder, and the comp board agreed, sending the matter back to the judge. On remand, the judge found the teacher proved the physical injury caused the psychological one.

The employer later argued the woman didn’t sustain a physical injury requiring treatment, thereby negating her physical/mental claim.

The Commonwealth Court ruled the comp judge didn’t err in applying a physical/mental standard because the claimant sought immediate treatment for the physical injury.  

The court also found the woman was entitled to ongoing total disability payments. 

 

The U.S. Occupational Safety and Health Administration announced Thursday that it cited a Texas construction company after a worker died in a crane collapse in March.

OSHA cited Farmersville-based S&D Erectors Inc. for four willful violations and proposed $262,977 in penalties in connection with the death of the mobile crane operator at a work site in Aubrey, Texas.

S&D exposed its workers to dangers by overloading the crane, failed to have an accident prevention program in place, failed to regularly inspect the work site and failed to meet federal safety standards for crane inspections, OSHA stated.

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