OSHA fines over one-million dollars have become more common. But here’s one with a twist: It’s not for workplace hazards — it’s for recordkeeping violations.

OSHA has issued Goodman Manufacturing Co. 83 willful citations for failing to record and improperly recording work-related injuries and illnesses at the company’s Houston air conditioning cooling facility.

The proposed fines total $1.215 million.

OSHA received a complaint that Goodman wasn’t properly recording injuries.

An investigation showed the company had either not recorded or failed to properly record the nature and/or duration of 72% of employee injuries and illnesses from January 2008 to March 15, 2010.

OSHA categorized the recordkeeping citations as willful because the company was extremely knowledgeable about OSHA’s requirements but made many unsupportable decisions.

The company has 15 business days from receipt of the citations to decide whether to contest the citations.

OSHA has implemented a National Emphasis Program (NEP) on Recordkeeping to assess the accuracy of injuries and illnesses recorded by employers. You can find out more about the NEP here (PDF).

A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident.  His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

What do you think about the ruling? Let us know in the Comments section below.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10.

The head of OSHA says after 40 years, the agency needs a fundamental transformation in the way it addresses workplace hazards, and its relationship to employers and workers. David Michaels says it’s time for OSHA to “take a different road.”

The statement comes in a document distributed to OSHA employees, OSHA at 40: New Challenges and New Directions.

Michaels says OSHA will focus on nine key areas. You can read those in Michaels’ letter (PDF).

Instead of restating those here, we looked through the document to find the top 10 ways these new directions for OSHA will affect U.S. businesses:

1. More inspections. OSHA has received a larger budget and has hired more inspectors. And the hiring of new inspectors isn’t over. Also, the agency is shifting personnel away from its cooperative programs and toward enforcement.
2. Larger fines. Even though Congress hasn’t passed legislation to increase the maximums for OSHA fines, the agency believes it can raise fines itself by changing the way it calculates them. Example: Now companies face a more expensive repeat fine if the same or similar violation is found within a three-year period. OSHA is looking into extending that to five years.
3. Regulation by shaming. OSHA hopes public condemnation of business activities that result in serious injury or death will act as a deterrent. The agency will issue more hard-hitting press releases that explain clearly why an employer faced a large fine.
4. Inspectors will interview employees. In every inspection, OSHA compliance officers will talk to workers privately and confidentially to find out if companies are recording injuries as required.
5. More checks on employee training. OSHA says its inspectors will check whether required training is conducted in a language that workers can understand.
6. Injury and Illness Prevention Programs required. OSHA says American workplaces need to undergo a paradigm shift, with employers going beyond simply meeting OSHA standards. OSHA wants companies to implement risk-based workplace prevention programs that uncover hazards before they lead to an injury or death.
7. Closer looks at safety incentive programs. OSHA says some employers, particularly those in high-hazard industries, have implemented programs, inadvertently or by design, that discourage injury reporting. Example: Everyone will get a steak dinner or a bonus if we have no recordable injuries this year. OSHA inspectors will look into whether such programs have caused injuries to go unrecorded.
8. New regulations will be developed more quickly. OSHA is looking into several ways to speed up development of new standards, which, the way things stand now, is a lengthy process. On the agency’s to-do list is the exploration of alternatives to creating new regulations hazard-by-hazard. In the meantime, OSHA wants to increase collaboration with other worker protection agencies, such as the Mine Safety and Health Administration (MSHA), the National Institute for Occupational Safety and Health (NIOSH), the National Institute for Environmental Health Sciences, and EPA.
9. Electronic workplace records to be required. OSHA wants to complete its transition to electronic data collection. That will force companies to follow certain OSHA standards to report workplace injuries and illnesses electronically.
10. State OSHA programs will be strengthened. Currently, 22 states have their own OSHAs for private and public employees, and another five have safety agencies for public employees only. OSHA says it wants to ensure penalties assessed by state OSHAs are as stringent as those issued by the federal agency.

Where do you think OSHA should focus its efforts? Let us know in the Comments Box below.

An employee engaged in unsafe horseplay at work. He got warnings, including a final one, but was caught once again on videotape. He was fired, and the case eventually went to court.

Thomas Ayres worked at Wal-Mart. The company has a policy prohibiting “practices that may be inconsistent with ordinary and reasonable common sense safety rules,” such as “horseplay.”

Ayres engaged in an activity he called “surfing” — riding on pieces of cardboard on gravity roller conveyors.

A manager warned Ayres this was against policy. Ayres acknowledged this type of conduct was an “unsafe procedure.”

He was issued warnings several times for rules violations, and eventually received a final warning. A worker at Wal-Mart who violates any policy after a final warning is automatically terminated.

Sometime after receiving that warning, Ayres reported that he had dropped a wooden pallet and injured his toe.

While investigating, Wal-Mart managers viewed a videotape of Ayres’ work area on the day he was injured. On the video, Ayres and several of his co-workers can be seen trying to jump over two stacks of wooden pallets.

Ayres started running toward the pallets from about 20 feet away and then tried to jump over them. He attempted this three or four times and then did a cartwheel off the side of the stack of pallets. This happened about an hour after Ayres injured his foot.

Wal-Mart fired Ayres for engaging in horseplay.

The state determined he was ineligible for unemployment benefits because he was fired for misconduct.

Ayres appealed, with the case eventually going to a state court. He argued that his actions didn’t amount to employment misconduct.

The court rejected Ayres’ argument. It ruled the horseplay he engaged in did amount to employment misconduct — unemployment benefits denied.

Ayres v. Wal-Mart Associates Inc., Court of Appeals of Minnesota, No. A09-2125, 8/3/10.

An employee injures her knee just by walking up stairs at work and applies for workers’ comp benefits.

Maureen Shay was a teacher in North Carolina. She normally used the school’s elevator to reach the second floor where her classroom was because it was difficult for her to walk up the stairs.

Then the elevator broke and she had to use the stairs.  A month later, her knee gave out while walking up the stairs.

Another month later, her knee pain hadn’t improved. An MRI revealed a medial meniscus tear in her knee.

Shay had surgery and filed a claim for workers’ comp benefits.

The insurance company denied coverage, saying the injury wasn’t work-related.

On appeal, the workers’ comp commission ruled in Shay’s favor and awarded her benefits.

The company appealed to a state court.

Was it an ‘accident?’

In court, both sides agreed that the injury arose out of and in the course of Shay’s employment. However, there was another issue to settle.

Under the state’s Workers’ Compensation Act, an employee is entitled to compensation for an injury only if it is caused by an “accident.”

North Carolina courts have defined accident as “the direct result of a specific traumatic incident” and not part of the employee’s normal work routine.

The court said in Shay’s case, since she didn’t stumble, fall, trip, slip or twist her knee, she didn’t suffer an accident.

Shay tried to argue that, because the elevator broke, walking up stairs to her classroom wasn’t part of her normal work routine.

But the court didn’t buy that argument either. It noted that she’d been walking up the stairs for four weeks before she injured her knee. It said that climbing the stairs for a month became part of her normal work routine.

The court’s final word: Comp benefits denied.

(Shay v. Rowan Salisbury Schools, Court of Appeals of NC, No. COA-09-1587, 7/20/10.)

What do you think about the court’s decision? You can leave a reply below.

Haven’t been inspected by OSHA, or, at least not recently?

Here are the top-10 dos and don’ts during OSHA inspections, according to two inspectors:

1. Don’t make me wait. It just tells me you’re not ready. Nothing you can do at the last minute is going to make much difference anyway.
2. It’s best to be open with me.
3. Don’t try to block my line of site by bringing a bunch of employees along on the walk-through. I’ll wait until I get to see what I want to see. Some of us use digital cameras. Some of us even videotape the inspection.
4. Be prepared to answer questions. Have all required OSHA documents, including those outlining safety plans, ready for me.
5. Don’t discourage employees from talking to me. I’ll talk to them one way or another. I find ways to slip employees my business card, and once I do, they usually call. If necessary, I’ll get a subpoena to talk to your employees.
6. Don’t lie to me. That makes me angry.
7. Think about hazards, not just standards, when you evaluate your workplace for safety. I look for hazards, not standard violations.
8. Have your training documents in order. I do look at them. If you have Hispanic employees, make sure you have documentation that they understood your safety training.
9. Plan ahead and designate a person or people who will meet with me. Make sure the person is prepared. It doesn’t matter to me whether you have a full-time safety manager or not. That doesn’t make me any tougher or easier on a company.
10. Check out OSHA’s Field Operations Manual for inspectors. Even though it’s written for inspectors, it’s available to anyone for free on the OSHA website (you can download a PDF here). It’s a great resource to prepare any company for the possibility of an OSHA inspection.

(Two OSHA inspectors provided these tips at the American Society of Safety Engineers’ 2010 annual conference.)

When no one witnesses a workplace injury and the injured employee files for workers’ comp, sometimes all you have to go on is the worker’s story. The situation can become more complicated when the worker delays reporting the injury.

Frank Karban said he was moving equipment at work on Feb. 24, 2007, when he bent down, made a twisting motion and “felt a pop” in the right side of his lower back.

Karban says he continued to work that day and didn’t report the injury to his supervisor until the next month.

His supervisor says Karban never told him about the incident.

Almost seven months later, Karban went to his employer’s environmental health and safety representative to report the injury.

Before he reported the injury at work, Karban saw his doctor who sent him for an MRI, which revealed lumbar spine abnormalities. His doctor and a specialist both recommended Karban stop working.

More than a year after the injury took place, Karban filed a claim seeking lifetime medical benefits for injuries resulting from the injury and temporary total disability. He claimed he’d never suffered a back injury before the workplace incident.

His doctor sent a note to the Workers’ Compensation Commission stating Karban had been to his office complaining that he hurt his back. However, that visit happened one month before Karban said the injury occurred at work.

Despite that information from the doctor, a deputy commissioner awarded Karban temporary total disability benefits for six months.

His former employer appealed, and the full commission reversed the deputy commissioner’s ruling, finding Karban failed to prove he suffered a compensable workplace injury and failed to provide adequate notice of the injury to his employer. The full commission also reversed the deputy commissioner’s finding that Karban was credible.

Karban appealed to a state court.

The court sided with the full commission: It didn’t find Karban to be credible. Specifically, the court noted several discrepancies in Karban’s testimony. Karban was unable to explain the medical records that showed he suffered an injury before his alleged workplace injury.

The credibility issue was enough to throw out Karban’s claim — in the end, he didn’t get workers’ comp benefits. Therefore, the court never ruled on whether he provided adequate notice of his injury to his employer.

Cite: Karban v. Universal Fiber Systems, Court of Appeals of VA, No. 2094-09-3, 7/13/10.

As this case shows, the longer a worker waits to report an injury, the more complicated a workers’ comp claim can become. What is your company’s policy on employees reporting injuries? How late is too late? Do you have specific procedures for when no one else witnesses a workplace injury? Let us know what you think in the Comments Box below.

A worker slipped and fell, and sustained multiple injuries including one to her back. While the worker was still healing, she lost her job in a mass layoff. Does she still get comp payments?

Vivian Toscano suffered injuries to her hip, shoulder, elbow, ankle, knee, and lumbar and cervical spine. During her recovery, she was restricted by her doctor from performing various job functions.  She received temporary partial disability (TPD) benefits.

Her employer, Wyeth/Pharma Field Sales, didn’t offer her modified work appropriate to her restrictions.

Then Wyeth laid off about 1,200 employees, including Toscano, while she was still recovering.

Wyeth’s insurance company denied Toscano’s TPD benefits on the basis that her loss of earnings wasn’t related to her workplace injuries, rather it was caused by the layoff. Toscano appealed to get the TPD payments back.

An appeals court sided with the employee. It said Toscano wasn’t able to do her job because of a workplace injury. That fact didn’t change after the mass layoff.

Based on that, the court said she should continue to receive TPD benefits.

Cite: Wyeth/Pharma Field Sales v. Toscano, District Court of Appeal of FL, first district, No. 1D09-5138, 7/7/10.

What do you think of the court’s decision? Let us know in the Comments Box below.

The New York Times reports that Wal-Mart has spent $2 million so far fighting a $7,000 OSHA fine in connection with the trampling death of a worker. Equally interesting is that OSHA has also devoted lots of resources to make sure this fine sticks. Why? Because the outcome of this case could have wide reaching effects on all sorts of companies.

On the day after Thanksgiving 2008, shoppers trampled a store clerk to death at a Wal-Mart on Long Island.

The world’s largest retailer settled the case with the Nassau County district attorney. Wal-Mart agreed to:

• adopt new crowd control techniques in all 92 of its New York State stores
• create a $400,000 fund for customers injured in the stampede, and
• donate $1.5 million to various community programs.

A $7,000 fine is a drop in the bucket for the huge retailer. Yet, it’s spent more money fighting OSHA than it did in the state settlement.

OSHA doesn’t have regulations about crowd control in retail or any type of establishment. So it used its general duty clause (GDC) to issue one citation against Wal-Mart for failing to take steps to protect its employees from a situation that was likely to cause injury or death because of a crowd surge or trampling.

The GDC says employers have a general duty to provide a place of employment that is “free from recognized hazards.” OSHA uses the GDC to issue citations when no federal safety regulation applies directly to a hazardous situation.

Wal-Mart says OSHA is trying to enforce a vague standard when there was no previous federal government or retail industry guidance on how to prevent the trampling death.

The retail giant has filed motions questioning the constitutionality of using the GDC in this case.

The Times article questions why Wal-Mart is spending so much on fighting the small fine.

But the same could be asked of OSHA. It’s worth questioning the huge amount of resources OSHA is using. The article notes OSHA has poured 4,725 hours of work by federal legal staffers into this case. Officials told The Times that over the last five months, 17% of the available attorney hours in OSHA’s New York office have been devoted to the Wal-Mart fine — the equivalent of five full-time lawyers.

One reason Wal-mart is fighting the fine so hard: If another trampling injury or death happens to an employee at any of its other U.S. stores, the company would face even larger repeat fines.

For OSHA, the stakes may be even higher. The agency, under President Obama’s appointee, David Michaels, has signaled that it intends to use the GDC more often to hold employers accountable for identifying and protecting employees against hazards.

For example, Michaels is on record saying that OSHA can’t possibly keep up with creating permissible exposure limits (PELs) for all the new chemicals used by U.S. companies. Instead, OSHA has proposed requiring companies to create their own injury and illness prevention programs (i2p2) to identify hazards.

The i2p2 program would make it that much easier for OSHA to use the GDC against companies. Once a company identifies a hazard, it becomes a “recognized hazard,” that satisfies a condition for using the GDC.

But creating the i2p2 requirement will take time, possibly years, just like any other federal rulemaking process.

In the meantime, OSHA relies on using the GDC in its current form in cases such as this one.

The case is before the independent Occupational Safety and Health Review Commission (OSHRC). If OSHRC rules in Wal-Mart’s favor, it could greatly limit OSHA’s ability to use the GDC not only in retail crowd control but in any other occupational area that’s not covered by a current federal safety regulation.

OSHRC heard the case last week. We’ll keep you updated.

Did OSHA make the right call in this case by using the GDC to issue a fine against Wal-Mart in the trampling death of its employee? What do you think about OSHA’s use of the GDC where no federal safety regulation applies to a specific hazard? Let us know in the Comments Box below.

For most employees, turning around isn’t dangerous. But for a nurse in Mississippi, that simple act resulted in a broken leg, a protracted court battle, and ultimately, a sizable workers’ comp award. 

Irene Hare was 74 at the time. She’d had serious problems with her left leg since 1964, when a car accident killed her mother and crushed her left ankle and knee. She’d walked with a limp ever since.

In 1987, another car crash again severely damaged the same left knee and ankle. After having a screw and side plate implanted in her left femur, she eventually had her kneecap removed.

In ‘88, she slipped on some ice and broke her femur above the knee.

Finally, in 2000, she broke her pelvis after falling off a curb.

But she was back at work one night in 2005. In fact, she was working for the sixth day in a row, although she was supposed to work only four days a week. She was always happy to fill in when others took time off.

Her leg, she admitted, hurt more than usual that night, and she told co-workers she planned to get a shot for arthritis when her shift ended.

While delivering meds to a patient, she remembered she’d left a glass of water on her cart. So she pivoted. And her left leg “popped just like a shotgun.” X-rays showed she’d fractured her left femur.

She filed a workers’ comp claim.

Her employer argued that the injury hadn’t arisen out of her employment. Rather, it was a natural progression of her 40-year history of injuries and surgeries on her left leg.

It brought in an expert witness who said she had significant weakness in the leg that made her susceptible to a “spontaneous fragility fracture.” The fracture could have occurred during any normal life activities, he said, but it happened to occur while she was doing her job.

Not true, said her treating doctor. Her past injuries were completely healed by the time of the accident, and this injury was “further up the shaft … well away from her original fracture.”

In overruling a comp commission decision that denied benefits, a court of appeals gave more weight to the treating doctor’s testimony, and added “that the employer takes the worker as the worker is found, that is, with all the physical strengths and weaknesses the worker brings to the job. If a lame worker suffers an employment fall and is injured, the injury is said to arise out of and in the course of employment under the same test applied for workers not lame. By the same token, if an awkward worker stumbles and falls, the rule is the same as if the worker were agile.”

The court also said the commission had failed to consider “the humanitarian aims” of comp laws to compensate and make injured workers whole.

A dissenting judge thought comp should have been denied, saying “the singular fact that an injury occurs while an employee is on the job does not create a compensable injury … I fear that the majority’s conclusion (turns every) employer into an insurer or guarantor for all injuries to any of its employees who suffer an ‘untoward’ event while on the job.”

What do you think? Feel free to comment below.

Cite: Beverly Healthcare v. Hare, Ct. App. Miss., No. 2009-WC-00344-COA, 6/29/10.

A company decided to take back a conditional offer of employment after it found the applicant was a recovering drug addict. A lawsuit followed.

Here’s what happened: Donald Teaford applied for a job at Hussey Copper in Leetsdale, PA. Teaford was offered a production job at the plant which fabricated copper products. His offer was conditional. First, he needed to pass a physical and drug test conducted at an occupational medical facility, Heritage Valley Health System. All production jobs at Hussey were considered safety-sensitive positions.

During his physical, Teaford didn’t tell the nurse that he was being treated by a doctor at a clinic for dependency on opiates, including Oxycodone, and that he had been prescribed and taking methadone, a drug used to prevent withdrawal symptoms in patients who were addicted to opiates.

His urine tested positive for methadone.

Dr. Daniel Nackley, the Medical Director at Heritage Valley, contacted Teaford, who then said he was under treatment and taking methadone. Nackley received a letter confirming Teaford’s treatment and methadone prescription.

Nackley tried to contact the doctor who prescribed the methadone but wasn’t able to do so.

Hussey’s human resources department looked into possible accommodations for Teaford. However, Hussey’s head of safety said all the production jobs were safety sensitive and an accommodation wouldn’t be possible.

Based on the information he had, Dr. Nackley recommended Hussey should not perform safety-sensitive work.

Hussey’s safety manager decided that Teaford’s offer had to be rescinded because he wasn’t medically cleared to perform safety-sensitive work.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit, alleging that Hussey discriminated against Teaford because he was a recovering addict in a supervised rehab program when it withdrew the conditional offer of employment. It seeks damages and back pay for Teaford.

The EEOC argues that Hussey failed to conduct an individualized assessment of Teaford, as is required by the Americans with Disabilities Act (ADA).

Hussey filed a motion to get the case thrown out, claiming that the Teaford’s physical and drug test, along with the analysis from Dr. Nackley, was an individual assessment. It also argued that hiring Teaford would have posed a high probability of substantial harm to himself or others.

The court’s decision: It would not throw out the lawsuit. It will now either have to go to trial or be settled out of court.

The court noted Dr. Nackley acknowledged that every situation involving opiate use is unique, and that a neurological exam was available to make an individual assessment. But a neurological exam wasn’t performed on Teaford.

For that reason, the court said Hussey didn’t conduct the required individual assessment on Teaford.

The take-away for companies: You can set qualifications for safety-sensitive jobs. However, medical professionals have to perform their due diligence to disqualify applicants from a job.

Cite: EEOC v. Hussey Copper, U.S. District court, W.D. PA, No. 08-809, 3/12/10.

You’ve probably heard lots of “rules of thumb” about workplace safety. But are they really true? This article will look at three of them.

Richard Sesak and Jerry Davis, two professors in the Department of Industrial and Systems Engineering at Auburn University in Alabama recently presented a session on safety truisms at the American Society of Safety Engineers Safety 2010 conference.

Using their research, let’s look at 3 safety rules of thumb and how true they really are.

1. 90% of accidents are caused by unsafe human acts. 10% are caused by unsafe conditions.
2. Indirect costs are 3-5 times the direct costs of accidents.
3. If you must be within arms’ reach to hear normal conversation, you are exposed to noise at or above 90 decibels and need hearing protection.

Take a guess whether these truisms are true or false, and then find out by clicking here.

When workers don’t report injuries right away and then apply for workers’ comp benefits, it often raises a red flag. With conflicting testimony, these cases often come down to which side the court finds more believable.

Rodney Harris claimed he injured his back at work on July 6, 2007, while lifting a drain from a machine. He says it happened 15 minutes before the end of his shift, the day before he was scheduled to begin a one-week vacation.

He didn’t report his injury that day, and even admitted, when the case went to court, that he knew about the company’s policy that injuries must be reported to a supervisor immediately.

Harris said one reason he didn’t report the injury was because he’d suffered from pulled muscles in his back before, and that’s all he thought it was.

Over the weekend, his back pain increased. The following Monday, while on vacation, he saw a doctor.

Harris was diagnosed with a large disk herniation and severe degenerative disk disease in his lower back.

He eventually applied for workers’ comp benefits. The company didn’t think Harris had been injured at work, and the case eventually went to trial.

Among the facts recorded by the court:

• The medical records from his first two doctor visits don’t indicate that Harris’ injury was work-related.
• Harris’ wife claims, on the day her husband was to return to work after vacation, she called his employer, Keystone Foods, to say he suffered a work-related back injury before vacation. However, Harris’ supervisor says there was no mention of the injury being work-related during the call.
• A neurosurgeon that Harris saw after his first two doctor visits also has no record that the injury was work-related in his documents.
• Harris is legally deaf. His wife and mother both said communication problems with the doctors were the reasons there were no mentions of the injury being work-related in their medical records.
• Harris’ doctors said they weren’t comfortable saying that his back injury was work-related because they had no documentation of a workplace accident.

Taking all these statements into consideration, both a trial court and appeals court found Harris’ testimony, along with that of his wife and mother, to be credible. It found that it was likely that communication problems Harris had with his doctors contributed to the fact that the injury happened at work was missing from their records.

The court upheld Harris’ workers’ comp benefits with one exception. Alabama law says if notice of a workplace injury isn’t given within five days, an employee won’t be entitled to medical benefits that may have accrued before the date of notice.

So the court said his initial doctors’ visits before he notified the company about the injury would not be covered.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Keystone Foods v. Harris, Court of Civil Appeals of Alabama, 6/4/10.

The cries for less government have become more frequent these days, including in reader comments on this website when OSHA ramps up enforcement or rulemaking. One frequent argument is that OSHA’s regulations hurt the U.S. economy.

A recent article in the Idaho Statesman by an economist takes a look at the question: Would we be better off if we got rid of “job-killing OSHA?”

Economist Ed Lotterman sums up the situation this way: We don’t want people to be killed at work. But many people are willing to take certain risks in their personal lives every day. And companies often don’t have difficulty finding people willing to do dangerous jobs.

Therefore, should government intrude into the private agreement between employer and employee?

Lotterman suggests an answer to his own question. First, he admits that OSHA regulations raise the cost of labor, at least somewhat. That could cause some companies to hire fewer workers.

The costs to business vary greatly, according to Lotterman, and are smaller than many people think.

For Lotterman, the question then becomes, what is the value of lives saved and injuries avoided relative to the cost of regulation?

While it’s difficult for most to put a price on human life, Lotterman suggests it is neither small nor infinitely large.

Coming up with the exact figure may be difficult, but Lotterman says society clearly is better off if a life is saved for every $10,000 spent on workplace safety. However, should that amount rise to $10 billion per life, we would be worse off.

But, what about the free-market argument that it’s up to employees to decide whether the risks involved with a particular job are worth the offered wages? If it becomes difficult for employers to hire workers to do dangerous jobs, they either have to raise wages or reduce the risks.

Lotterman says there’s one problem with that viewpoint: an information gap. Many employees don’t have accurate information about the risks involved. With bad or incomplete information, they can’t make reasoned decisions when comparing risks to wages.

Lotterman concludes that the free market doesn’t lead to “a social optimum.” He says government action may make things better.

For those who think, “OSHA is out of control,” Lotterman offers these thoughts. He’s not saying that everything the agency has done in the past 40 years has made total sense. Example: He doubts requiring dairy farms to post signs that manure may make floors slippery has generated any “net benefit for society.”

On the other hand, Lotterman cites shoring requirements for trench walls as a worthwhile OSHA regulation. Requiring trench walls or boxes has greatly reduced the number of construction worker deaths each year, and that’s worth the cost to business, according to Lotterman.

And he concludes that, no matter which candidates are elected to office, OSHA isn’t going anywhere anytime soon.

Is the new leadership at OSHA going too far? Where do you draw the line between good OSHA regulation and bad? Let us know what you think in the Comments Box below.

How do you know that the worker who claims to have been injured on the job isn’t committing workers’ comp fraud?

Over the years, employers and insurance companies have uncovered some telltale signs.

Any one of these red flags alone probably isn’t enough reason to suspect fraud. There’s a better chance the worker may be trying to pull one over on you notice a few of these situations:

• The disgruntled employee. While a worker known as a regular complainer might seem to be the most likely candidate, also consider workers who were recently denied vacation time, demoted or disciplined, and are keeping quiet about it.
• Difficult to contact. Injured employees who are difficult to contact at home may be working at other jobs. Also, beware when employees aren’t available immediately but call right back. In the age of cell phones, people at home can call employees at their new jobs, and then the employees call back using their cell phones.
• The new employee. Statistics show the newer the employee, the more likely a claim is fraudulent.
• No witness. This is more likely to be a red flag when the employee normally doesn’t work alone.
• Unusual circumstance. This one is related to no witness. Was the employee supposedly working somewhere they wouldn’t be normally?
• Rough hands. Calluses or grease under fingernails may be a sign that the worker is double-dipping at another job.
• Knows about workers’ comp. Does the employee show an unusual knowledge about the workers’ comp system?
• 24-hour lawyer. Did the employee get a lawyer very soon after the injury occurred?
• Doctor shopping. A request for a second opinion may not be a red flag, but watch out when the need for a new physician happens after the first doctor says the employee can go back to work.
• Good timing (for the employee). This includes before a layoff and injuries that are reported early on a Monday — a sign that the injuries may have happened off-the-job, over the weekend.

Do you have any signs of fraud to add to this list? You can share your experience in the Comments Box below.

A worker at a bear park smoked pot before coming to work where he fed grizzlies. The worker was seriously injured by one of the bears. A workers’ compensation judge called that “mind-bogglingly stupid.” But did the judge rule the worker was entitled to workers’ comp?

Montana’s comp law says: “An employee is not eligible for benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.”

Here’s what happened in this case:

Employee Brock Hopkins entered a pen at Great Bear Adventures in West Glacier, MT, to feed grizzlies. He was attacked by one of the bears and escaped by crawling under an electrified fence. He suffered severe injuries.

Hopkins admits he smoked marijuana that day. (Changed from original version to clarify that the defendant smoked marijuana on the day of the incident.)

His employer presented no evidence about his level of impairment on the day of the attack.

Hopkins sought workers’ comp benefits for his injuries but was initially denied on the grounds that his use of marijuana was the major contributing cause of the accident. Hopkins appealed to the state’s Workers’ Compensation Court.

Here’s what the judge wrote: “When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage. Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill advised to say the least and mind-bogglingly stupid to say the most.”

The judge noted that, while using pot before interacting with bears may have been stupid, there was no evidence presented to conclude that Hopkins’ pot use was the major cause of the incident.

The decision: Hopkins was entitled to workers’ comp benefits.

What do you think about the judge’s decision in this case? Let us know in the Comments Box below.

Hopkins v. Uninsured Employers’ Fund, Workers’ Compensation Court of MT, No. 2008-2152, 5/4/10.

For purposes of workers’ comp benefits, just what constitutes an injury “arising out of and in the course of employment”? A court recently issued an interesting interpretation of that phrase.

Terry Henry worked at Precision Apparatus, a company that builds ambulances and fire trucks.

Each morning before his shift, he’d arrive early to arrange his tools and prep for the workday.

The company also allowed employees to work on their personal vehicles before work, at lunch and after hours.

One morning, Henry arrived early for his usual routine. He hadn’t filled in his time card yet.

A co-worker pulled his personal vehicle into a garage bay to fix a flat tire. Henry heard someone say the vehicle was going to roll off the jack, so he went outside to get a rock to keep the truck from moving.

When he went outside he tripped and broke his leg.

He applied for workers’ comp benefits. The Missouri Labor and Industrial Relations Commission said the injury didn’t occur in the course of work and rejected his claim. Henry appealed.

The Missouri Court of Appeals upheld the Commission’s decision. It said helping a co-worker didn’t qualify as work.

However, the court also wrote in its opinion, that some injuries at work before an employee clocks in are eligible for workers’ comp benefits.

“The Commission could have found that [Henry] was working for the employer when he was arranging his tools and at his workbench if the injury had occurred at that time. Had the Commission found a compensable injury occurred at his workbench, but prior to [the start of his shift], we would accept the Commission’s factual determination.”

Bottom line: This state accepts the idea that if an employee is injured “off the clock” while performing tasks in the workplace that benefit the employer, that worker may be eligible for workers’ comp benefits.

What do you think about the decision regarding Henry and the court’s statement on when workers’ comp benefits kick in? Let us know in the Comments Box below.

Cite: Henry v. Precision Apparatus, Missouri Court of Appeals, No. 29772, 2/16/10.

What types of workplace noise do you think of in connection with occupational hearing loss? Jack hammers, lawn tractors, manufacturing assembly lines? In this case, a worker claims hearing loss from being yelled at on the phone by angry customers.

Linda Zahm worked for National Fuel for 31 years. For 18 of those years, she spent varying parts of her day on the phone with customers who were angry and/or had difficulty hearing.

When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.

Two years after she retired, Zahm filed a workers’ compensation claim contending she’d suffered occupational hearing loss due to long-term noise exposure “from being on the telephone for years.”

A workers’ compensation law judge and the Workers’ Compensation Board ruled that Zahm had suffered occupational hearing loss. The company appealed.

Zahm’s treating physician testified that her hearing loss was from employment.

However, the appeals court sided with the company.

The court said Zahm’s doctor based her opinion on an erroneous assumption that Zahm spent all 31 of her years on the job on the phone for eight hours a day and was exposed to 80 to 90 decibels of noise.

The court said Zahm’s “description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious.”

Outcome: Award of workers’ comp benefits overturned.

What do you think about this case? Let us know in the Comments Box below.

Cite: Zahm v. National Fuel, Appellate Div. of NY Supreme Crt., 4/15/10.

Marijuana is now legal as a prescription painkiller in 14 states. But what if you have a drug-free-workplace policy?

When it comes to HR policies, companies in some states find the situation to be complicated.

But the good news is that when it comes to safety, companies’ rights are more clear — at least somewhat.

Seven medical marijuana states include employee protections. Only on-the-job consumption or impairment can be grounds for termination in Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont.

Two more states, Rhode Island and Maine, have other explicit protections for medical marijuana patients.

On the other hand, in California, the state supreme court has ruled that drug testing for marijuana is legal and that firing an employee for medical marijuana use, even outside the workplace, isn’t discrimination.

When it comes to safety, federal regulations can come into play.

OSHA’s General Duty Clause states that all employers must provide a safe work environment to employees. So if it can be shown that an employee’s impairment is a danger to himself or other workers, a company can suspend or fire the worker.

On top of that, the federal Department of Transportation issued new guidelines last year that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs, including pilots, school bus drivers, truck drivers, subway operators, ship captains and transit security workers who are armed.

As courts rule on worker lawsuits against companies over the issue of medical marijuana, employers will receive more guidance.

Until then, this is a case where it’s good to get legal counsel involved before taking action.

It’s a fact: Dust, temperature and humidity factor into asthma attacks. But how can you tell if asthma is an ongoing disability?

Here’s what happened in this case:

Hughey Payne worked for the Washington Metropolitan Area Transit Authority (WMATA) as a Metro Station manager.

One summer, Payne had trouble breathing because malfunctioning air conditioning in the station created high heat and humidity.

He received a requested transfer to another station.

A year later, the air conditioning in that station stopped working, and Payne became dizzy, faint and very weak one day on the job.

He left work and hasn’t returned since on advice from his doctor that he should avoid the “dusty, underground station,” and that he needs to work in an environment “without temperature extremes to avoid worsening of his asthma.”

Payne filed for and received disability benefits.

An administrative law judge (ALJ) made these findings:

• Payne’s injury arose out of and in the course of his employment
• His physical condition “is medically causally related to the work incident” (malfunctioning air conditioning)
• His exposure to dust and excessive heat while working as a station manager aggravated his asthma, and
• The medical evidence supported Payne’s claim that the work exposure to dust and heat prevented him from returning to work in the Metro tunnels.

His employer, WMATA, appealed.

It presented testimony from a certified industrial hygienist that the dust levels inside the Metro stations were 1/100th of the limit set by OSHA.

The ALJ again ruled in favor of Payne, saying that the hygienist wasn’t a medical doctor and couldn’t determine whether those dust levels were sufficiently low for Payne to return to work.

The case eventually went to the District of Columbia Court of Appeals.

It noted that one of the doctors in the case was asked: If a person is affected by dust, and a report says a work area meets OSHA air quality standards, would that person be released to go back to work? The doctor replied in that case, it wouldn’t be the dust that was causing the asthma problem.

On top of that, the appeals court found the ALJ had used the wrong burden of proof to determine whether Payne’s disability was ongoing. For that reason, the ALJ couldn’t discount the testimony from the industrial hygienist.

The case has been sent back for a rehearing. (A PDF of the appeals court’s entire opinion can be downloaded here.)

What do you think about this case? Let us know in the Comments Box below.

Cite: WMATA v. Payne, DC Court of Appeals, No. 08-AA01207, 4/15/10.

A company required a female employee to take a physical strength test before returning to work after an injury. Was it a valid test of the employee’s ability to perform her job safely, or was it gender discrimination?

Deborah Merritt was a long-distance truck driver for Old Dominion Freight Line, which required her to be away from her family on some nights and weekends.

When positions for local pickup and delivery drivers opened at Old Dominion, she’d apply so she could have more time with her family.

The pickup and delivery drivers often had more physical tasks to perform, because they had to help with loading and unloading of cargo.

She was passed over more than once for less experienced male drivers.

Eventually, Merritt did get a pickup and delivery position. All indications were that she was doing a good job.

Then she injured her ankle. After a recovery period, she told Old Dominion she was ready to come back to work.

Her doctor OK’d her return to work with no restrictions. The day after her doctor’s appointment, Old Dominion required her to take physical ability test (PAT) before returning to work.

Old Dominion said Merritt failed portions of the test. No part of the test was designed to test whether an ankle injury would hinder an employee’s ability to do the job of a pickup and delivery driver.

Merritt was fired.

She filed a lawsuit alleging sex discrimination.

Merritt also presented evidence of discriminatory attitudes toward women at the company.

Employment records seemed to back that up. Old Dominion employed about 3,100 pickup and delivery drivers. Only six were women.

Old Dominion argued that the PAT was standard procedure before a driver could return to work after an injury.

However, the company couldn’t produce the PAT policy in writing. And Merritt’s lawyer presented evidence that the policy wasn’t always used.

That was enough for the judges. They denied Old Dominion’s motion to throw out the case. The court said it should go to a jury trial. Now the company must risk arguing its case in front of a jury, or it could choose to settle out of court which still might be expensive.

Bad news for employers using physical ability tests to make sure workers can do their jobs safely? Not at all.

In fact, the judges, in their opinion, wrote that PAT policies are reasonable. The problem in this case is that the company didn’t require them all the time, which, combined with other allegations, appeared to amount to a case of gender discrimination. The lack of a written policy also hurt.

And the test didn’t address the employee’s specific injury. In similar cases, courts have examined whether PATs reflect the real work to be done by employees or applicants.

What do you think about the judge’s decision? You can let us know in the Comments Box below.

Cite: Merritt v. Old Dominion, U.S. Court of Appeals 4th Circuit, No. 09-1498, 4/9/10. The entire opinion is available here (PDF).

Recently, we wrote about a survey that put “safety” as the No. 6 most annoying thing in the workplace. So, we asked you what is most annoying about workers when it comes to safety. Here are your answers:

One of the most common complaints was workers who say things like, “I’ve been doing that this way for 20 years and have never gotten hurt.” A slight variation on the theme: “I have 20 years experience. Don’t tell me how to do my job.”

When it comes to one specific worker action that is annoying, “wearing safety glasses/goggles on top of their heads” was mentioned the most.

Some other annoying worker practices when it comes to safety:

• Supervisors who walk right by obvious safety violations.
• “Safety is the safety manager’s job, not mine.”
• Employees who say they don’t have time for safety.
• Safety costs too much.
• Managers who require workers to attend safety meetings and then don’t show up themselves.
• Workers who prefer not to know about safety rules and then say they were out of the loop.
• Not reporting injuries. “It happened a month ago, but I thought it would quit hurting, so I didn’t tell anyone.”
• “I’m the engineer. I get the thing to run. You’re the safety person. You figure out how to do it safely.”
• Upper management that won’t get serious about safety.
• “Where does it say that I have to _____?”
• Blocking exits, aisles, fire extinguishers, eyewash stations, etc.

After reading all of those (and probably recognizing many, if not all of them), are you really annoyed?

We don’t want you to spend the rest of the day that way. So, we’ll note that a number of you seemed to have a good sense of humor while writing about these annoyances. And while safety is, of course, very serious business, it can help you get through the day to have a sense of humor about it.

Here are some worker annoyances from safety pros that show that they’re not about to let the few employees who ignore safety get them down:

• “We are safety-ed to death.” (The workers who said that obvious didn’t think about their statement.)
• “Safety, safety, safety. All we ever talk about is safety, and we don’t even have any accidents around here.” (Well, must be working, right? )
• “We never had all this safety s*** before,” from the guy missing part of his thumb because it was ripped off in a drill press.
• Right out of the childhood playbook: “They’re not doing it, so why should I?”
• “That wouldn’t be in the aisle for someone to trip over if we didn’t have to participate in this Safety Tour during our clean-up time.”
• When people open a meeting by saying, “Let’s get this party started.” If it were a party, there’d be more beer and hot people in the room.

And some of you really liked one comment and requested a copy of the so-called “Dumb-ass Certificate”:

Deviation Under Modified Basis—Agreement Support Sheet (DUMB-ASS Certificate)

I understand that there are identified rules and procedures in place but I cannot accomplish the task on the basis of those rules. I am applying for this Dumb-Ass certificate so I can get an exemption to perform (name task) without following the following safety procedures.

The reason that I want the Dumb-Ass exemption is (check all that apply)…

You get the picture.

When it comes right down to it, a one-word comment we received sums it all up. The most annoying worker habit when it comes to safety: Excuses.

How do you counter workers’ excuses? Let us know in the Comments Box below.

Safety videos without blood: Will they work?

About a year ago, we wrote about five safety videos produced by the Ontario, Canada, Workplace Safety and Insurance Board.

Each half-minute story addresses workplace safety topics in a variety of settings, including construction, manufacturing and retail.

They don’t sugar-coat the subject. One shows a restaurant worker’s scalded face after she slips and spills a large pot of boiling water on herself. They are disturbing — but they got more than 580,000 views on YouTube.

Now, several Canadian provinces, including Nova Scotia and Alberta, have released a new series of public service ads, “Before it’s an injury.”

These videos show workplace hazards, too, such as a bucket of water left in the middle of a hallway and a ladder with a rung that’s ready to break.

But in each one, the screen quickly cuts to black as the painful workplace injury is about to take place. In the one involving a nail sticking out of a piece of wood, you hear the sickening sound of the nail piercing flesh as a worker stands up and bumps into it. But you don’t see the incident. The last thing heard on the ad is someone saying, “Somebody get help.”

They leave more to the imagination. But they’re done in such a way that you can’t avoid thinking about what happens next.

So here’s the question: Do you need blood in safety videos for them to make an impact? Let us know what you think in the Comments Box below.

Ranking right up there with poor restroom etiquette and people not showing up for meetings, it turns out some workers find safety … annoying.

Some of the items on London-based Opinium research’s Top 10 list of office annoyances make perfect sense.

Take, for example, the top vote getter: grumpy or moody colleagues (37%). Sure, no one like a sourpuss.

In second place, slow computers (36%). OK, we get that one, too.

But “too much health and safety in the work place” comes in at No. 6. (16%). The same percentage of people surveyed chose “poor toilet etiquette” and “people not turning up for meetings on time or at all.”

Too much safety: Really?

Maybe it’s because health was lumped in there with safety. While we’ll support the idea that employee health is important, perhaps the recent focus on wellness programs has turned some people off.

It’s possible the person who requested healthy snacks in the vending machine has become one of the most unpopular people in the office.

Also, it might be a good idea not to ask safety trainees to “think outside the box” or to “drill down to a more granular level.”

Those two phrases appear on a companion list of most annoying office jargon.

Here are both complete lists:

Top 10 office annoyances:

1. Grumpy or moody colleagues (37%)

2. Slow computers (36%)

3. Small talk/gossip in the office (19%)

4. The use of office jargon or management-speak (18%)

5. People speaking loudly on the phone (18%)

6. Too much health and safety in the work place (16%)

7. Poor toilet etiquette (16%)

8. People not turning up for meetings on time or at all (16%)

9. People not tidying up after themselves in the kitchen (15%)

10.Too cold/cold air conditioning (15%).

The most annoying jargon:

1. Thinking outside the box (21%)

2. Let’s touch base (20%)

3. Blue sky thinking (19%)

4. Blamestorming (16%) (sitting down and working out whose fault something is)

5. Drill down to a more granular level (15%) (look into something in more detail)

6. Let’s not throw pies in the dark (15%) (we need a plan rather than a haphazard approach)

7. I’ve got that on my radar (13%)

8. Push the envelope (12%)

9. Bring your A-game (11%) (be ready to do something to best of ability)

10. Get all your ducks in a row (11%).

So, workers find safety annoying? Turnabout is fair play.

As a safety pro, what habits do you find most annoying about workers? Let us know in the Comments Box below. We’ll tabulate your thoughts and feature them in a future post.

“Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem. The current penalties do not provide an adequate deterrent.”

Those words came from OSHA administrator David Michaels in his testimony in favor of the Protecting America’s Workers Act (PAWA).

The bill would include public employers under OSHA and increase whistleblower protections.

But the major attention has been paid to the parts of the measure that would increase OSHA fines. The bill would:

• increase the maximum penalty for knowingly violating a rule that results in the death of an employee to 10 years in prison
• increase penalties for willful or repeat violations that involve a fatality to as much as $250,000, and
• create automatic increases in fine amounts by tying them to inflation.

In his testimony before a U.S. House subcommittee, Michaels pointed out that the average OSHA fine is about $1,000. The median fine for cases in which a worker was killed is about $5,900.

Michaels went on to point out that other federal agencies have the ability to issue much larger fines for infractions that don’t include human death. For example, the Department of Agriculture can impose a $130,000 fine on milk processors for willful violations of the Fluid Milk Promotion Act. TV and radio stations can be fined $325,000 for indecent language. The EPA can issue $270,000 fines for Clean Air Act violations.

Michaels also supports PAWA’s provision to increase the number of criminal prosecutions for workplace deaths and serious injuries.

What do you think about Michaels’ assertion that OSHA penalties are too low to matter to most businesses? Should the penalties for the most egregious violations, those that result in serious injury or death, be significantly increased? What about prison time for company managers when a worker is killed on the job? Let us know what you think in the Comments Box below.

An employee was injured at work. At first his injury seemed minor. But as time passed, his condition grew more serious. He didn’t tell his employer about the incident until he needed to see a medical specialist.

In Kentucky, where this incident took place, workers’ comp law states that compensation shouldn’t be provided if the employee didn’t tell his employer about the injury “as soon as practicable.”

So the question in this case is: Does the worker get comp?

Here’s what happened:

A crate coming down a chute struck the employee on the shin. The force of the blow knocked him over. He immediately noticed a red welt on his leg. The worker didn’t report the injury because, at the time, he felt it was “no big deal.”

The next day the welt was bigger and started to turn black and blue.

The leg got worse several days later.

Two months after the injury, the spot was “like a blister or boil.” Soon after that it turned into an open wound.

It wasn’t until 60+ days after the incident that the worker finally reported the injury at work.

By this time, doctors had to bandage the wound. Eventually he had to see a specialist for wound care.

The company said it always stressed to its employees the importance of immediately reporting injuries because of the presence of bacteria and chemicals in the workplace that could cause even minor cuts to become infected.

An administrative law judge (ALJ) found the worker had waited too long to report the injury to qualify for workers’ comp. On appeal, the workers’ comp board upheld the decision. The worker appealed again to a state court.

The court found no reason to disagree with the ALJ’s finding. It noted that there are three reasons the notice requirement was required in the state’s workers’ comp law:

1. to provide prompt medical treatment
2. to allow a prompt investigation, and
3. to prevent fraudulent claims.

The worker said he provided notice to his employer as soon as he “became aware of the seriousness of his injury.” But the ALJ and the state court said that wasn’t good enough.

Verdict: No workers’ comp.

A side note: The court observed that there is no definition of “as soon as practicable” in the state’s workers’ comp law. It relied on the ALJ’s discretion to determine that.

How soon is soon enough? Within 15 minutes of injury? The same day? Is first thing the next morning OK? At what point should an employee be denied workers’ comp benefits for delaying the report of an injury? Let us know in the Comments Box below.

Cite: Granger v. Dairy, Court of Appeals of KY, No. 2009-CA-001345-WC, 3/5/10.

If doctors declare an injured worker totally disabled, what happens if he looks for work while he’s waiting to see if he gets workers’ comp benefits?

John DeHaven injured his shoulder at work in April 2005. He received temporary total disability payments until November 2005 when he took a light-duty position with his employer.

Three months after taking the light-duty position, DeHaven was laid off.

Eight months later, he filed a claim for workers’ comp benefits for his shoulder injury.

His former employer fought the claim using a few different arguments. But given today’s economic climate, this one is interesting.

DeHaven testified before the workers’ comp commission that he’d been looking for work since he was laid off. He said he had to look for work because he wasn’t receiving workers’ comp benefits and he didn’t have any income. DeHaven wasn’t able to find a job he was physically able to do.

His former employer said since DeHaven had looked for work, that negated his doctors’ opinions that his injury left him totally disabled.

The court didn’t buy the company’s reasoning. “We will not penalize DeHaven for seeking work despite his disability due to financial necessity, and we defer to the opinion of DeHaven’s treating physicians who concluded he was totally disabled,” the court’s opinion stated.

The court ruled DeHaven should receive temporary total disability benefits.

What do you think about this case? Let us know in the Comments Box below.

Cite: Land N Sea Distributing, Inc. v. DeHaven.

One of those so-called reality shows takes too cavalier an attitude about safety, according to a blogger in the general media. If that’s the case, we want to take the issue one step further: Do the media’s messages harm attempts to increase workplace safety?

Marc Hirsh blogs on National Public Radio’s Web site that CBS-TV’s Survivor has been “dangling … the prospect of people getting hurt as enticement to watch the show.”

The evidence he presents:

• A recent episode description: Injuries threaten to send two castaways home.
• The first injury took place just 17 minutes into the current season during the first round of the first challenge. Stephanie LaGrossa dislocated her shoulder.
• Host Jeff Probst’s comment about LaGrossa: “We have our first injury.”
• Later, Probst “gleefully” recounted the injuries suffered in the challenge.

And all the challenges on Survivor happen without safety gear required in professional sports — or in the workplace.

Hirsh also opines that “injuring yourself on the show stopped being a sign that you were stupid or clumsy or just plain doing something wrong and turned into a badge of honor.”

So there you have it: bodily injury as a badge of honor mixed with an attitude of “come on, tough it out.”

And that brings us to workplace safety. Have you ever encountered this situation? One worker, a “tough guy” with an “I-don’t-need-safety-gear-it’s-for-wimps” attitude, discourages others from using PPE.

Unfortunately, safety pros tell us that type of worker isn’t as rare as they’d like.

And, as the title of Hirsh’s article puts it, it’s “all fun and games until someone loses an eye.”

How do you counter the “tough guy” attitude when it comes to getting employees to wear PPE and follow safety rules? Can we do better, at work and at home, to encourage better safety attitudes? Let us know what you think in the Comments Box below.

In the first year of the Obama administration, OSHA was busy handing out fines the likes of which hadn’t been seen for eight years. Here’s our rundown of 10 significant fines from the last 12 months, and what they mean for businesses:

1. OSHA issues largest fine ever: $87.4 million to BP. This fine demonstrates OSHA’s intent to check up on companies once they’ve made serious safety mistakes. The agency evaluated BP’s progress after the 2005 fire and explosion that killed 15 people and injured 170 more at its Texas City, TX refinery. OSHA issued 270 “notifications of failure to abate” and identified 439 new willful violations at the plant.
2. Two executives face prison time and huge fines in deaths of five workers. Phillipe Goutagny and James Thompson, executives with RPI Coating, each face 2.5 years in prison and a fine up to $1.25 million if convicted. On Oct. 2, 2007, vapor from a solvent ignited inside a tunnel at a hydroelectric plant in Colorado. Workers survived the blast but were overcome by smoke and fumes and died of asphyxiation. OSHA says it will work more closely with the Justice Department in cases like these to bring criminal charges against executives with penalties that include prison time.
3. OSHA wastes no time in using new per-employee citations, issues $1.2 million fine. G.S. Robbins & Co. of St. Louis, MO, was hit with 21 egregious willful citations for hazardous chemical handling. Each citation was on a per-instance basis. Even during this period of difficult economic recovery, OSHA won’t hesitate to use per-instance, per-employee fines to hike total fine amounts. This wasn’t the only instance in which OSHA used per-instance citations in 2009 (see item #7 below).
4. Company hit with $1.14 million fine following employee complaint. Are the big fines relegated only to incidents involving deaths or multiple serious injuries? Hardly. OSHA began a December 2008 inspection at Milk Specialties in Whitehall, WI, in response to an employee complaint. Willful citations were issued for the employer’s failure to comply with OSHA’s confined space and lockout/tagout regulations. OSHA is taking employee complaints seriously.
5. After two similar incidents, owner and manager go to jail. ANC Roofing of Santa Rosa, CA, owner Kenneth Alton pleaded no contest to failing to protect employees from a hazard. He was sentenced to nine months in jail and a $248,000 fine. Supervisor Robert McAfee pleaded no contest to one misdemeanor violation and was sentenced to 30 days in jail. On May 11, 2006, an ANC employee backed into an unguarded skylight and fell 21 feet to his death. Four months later, another ANC employee suffered major head trauma when he fell 19 feet from an unprotected skylight.
6. OSHA fines Wal-Mart $7,000 for worker trampling incident. A Wal-Mart worker was trampled to death by a crowd of 2,000 shoppers on the day after Thanksgiving in 2008. OSHA said Wal-Mart should have recognized that its employees were exposed to being crushed by the crowd based on previous experience. Wal-Mart fought the fine. OSHA used the General Duty Clause to issue the fine and has said it will use the GDC in similar situations where safety was compromised but a specific regulation wasn’t violated.
7. Company faces $1.09 million OSHA fine for 202 willful violations. OSHA didn’t really need anyone’s permission to start issuing per-instance fines (see item #3 above), but it got the go-ahead in the form of a decision from the Occupational Safety and Health Review Commission (OSHRC). The appeals panel ruled OSHA properly cited Smalis Painting Co. on a per-employee basis for violations of the lead-in-construction regulations, in connection with a project near Pittsburgh, PA. OSHA monitored six Smalis employees for lead exposure. Based on that data, OSHA issued violations for all employees who would have been exposed to the same hazards.
8. OSHA is getting companies to agree to implement safety and health improvements above what’s required by regulations. A-1 Excavating of Bloomer, WI, agreed to make numerous changes in its work processes in exchange for lowering fines from almost $900,000 to $470,000. A-1 has to hire a full-time safety director, develop and implement site-specific safety and health plans for all major projects, identify all job sites to OSHA before work begins for the next three years, reduce the salary of job superintendents and project managers who fail to comply with OSHA requirements, and retain a third-party safety consultant.
9. Cintas agrees to pay $3 million in fines and to comply with other conditions. In some cases, it hasn’t been an either-or situation between fines and strict safety improvements. After a worker was killed when he fell onto an unguarded conveyor and was dragged into a 300-degree industrial dryer, Cintas agreed to the huge fine and to retain a team of independent experts to develop permanent fixes and review interim controls. Cintas also agreed to hire additional safety staff, conduct more frequent internal safety inspections, and establish new systems to examine employee complaints.
10. A construction company agrees to pay $750,000 in fines and cut the pay of unsafe supervisors. Broadway Concrete of New York, NY, agreed to reduce the salaries of senior job superintendents who failed to comply with job safety practices. Broadway also agreed to hire a full-time corporate safety director, develop a new corporate safety plan, and provide OSHA with information on major projects and access to all job sites for the next four years.

What do you think of OSHA’s recent enforcement tactics? Let us know in the Comments Box below.

Imagine this: A worker has surgery to insert metal plates and screws to repair damaged discs in his neck. He says his injury happened at work … when he sneezed.

And since he claims it happened at work, the employee wants workers’ comp (WC) benefits.

Joseph Hopper says he was injured at work when he reached to grab a tire while unloading a truck. He claims he didn’t report the injury because his supervisor wasn’t at work.

Hopper says ten days later, he was opening the shop when he sneezed and heard a popping sound in his back. The pain was so bad, according to Hopper, that he had to leave work.

After having the neck surgery, Hopper applied for WC benefits.

His boss testified that Hopper didn’t report a work-related injury, but told him that he’d injured his neck at home.

A doctor testified in support of Hopper, saying “when the sneeze happened [it] finally sort of put him over the edge.”

However, hospital records show that when Hopper went to the emergency room because of pain, he said the sneeze “happened at night,” which would have put him at home at the time of the incident.

At one point, Hopper was awarded WC benefits, but his employer appealed. The state WC commission reversed its ruling, then Hopper appealed.

Now a state appeals court has upheld the commission’s second opinion that comp benefits should be denied. Since Hopper didn’t report a work injury and he was on record as saying the sneeze happened at night, the court said there wasn’t enough evidence to prove the injury happened at work.

What about the claim that a sneeze can cause a neck or back injury? This season, LA Clippers coach Mike Dunleavy reported that he aggravated a herniated disc in his lower back by sneezing. And we found several articles on the Web that say a sneeze can cause a back injury.

What’s the strangest injury claim you’ve ever heard? Let us know in the Comments Box below.

Cite: Hopper v. Krevinec, Crt. of Appeals of MS, No. 2009-WC-00206-COA, 1/19/10 (PDF).

Workers’ comp laws usually prohibit lawsuits against companies when a worker is seriously injured or killed on the job. But a lawyer in Texas found a way to skirt the law and win a huge jury award.

Crane operator Adrian Flores was killed after he was pinned by a 1,200 ton weight.

Flores’ crane was one of four working simultaneously to lift the weight from one end of a dry dock to the other.

The load shifted and came into Flores’ cab. He was trapped for over two hours and was conscious for much of that time. He was taken to a local hospital where he died on the operating table.

William Tinning, the lawyer for Flores’ family alleged that Gulf Marine Fabrication:

• didn’t use enough cranes
• didn’t send instructions on how to lift the load
• failed to hire an outside engineering company to design a lift plan, and
• relied on an unqualified engineer whose plan deviated from accepted practices and contained math errors.

The attorney sued the employer’s parent and sister companies, alleging they had control of the worksite. At the same time, he admitted that the employer bore some responsibility, just not all of it.

Tinning used the deposition of an executive with the parent company who signed the contract, oversaw daily operation and did hiring onsite to show the parent company had control over the crane operation.

The jury assigned 15% of the blame for the employer and awarded $5 million to Flores’ widow, $500,000 to each of his four adult children, and $1 million to each of his two minor children. The remainder of the $11 million award went to his estate for his own pain and suffering.

Lawyers for the company only called two witnesses during the trial: the engineer who designed the plan and an OSHA expert.

Did the jury make the right decision? Let us know what you think in the Comments Box below.

A sanitation employee, who was preparing to urinate while standing on a platform on the back of a garbage truck, fell off the truck as it was backing up. He was killed after the truck backed over him. His family is seeking workers’ comp benefits because of a modification made to the truck.

Michael LaPoint’s family argues this is an intentional wrong exception under the Workers’ Compensation Act, and they should be paid death benefits.

His employer, a township in New Jersey, says LaPoint ignored warnings about riding on the back of garbage trucks, especially when they were backing up.

The rear sides of the truck had warning decals stating, “CAUTION: Do not use riding step when vehicle is exceeding 10 MPH, operating in reverse or traveling in excess of 2/10 miles.” The township also provided employees with pamphlets containing similar warnings.

However, the township installed a platform step on the back of the truck. LaPoint’s family said the modification “clearly provided a substantial hazard that was certain to result in accidents, injury or death.”

In support of that argument, the family showed that the American National Standards Institute (ANSI) eliminated rear platform steps on sanitation trucks from its standards in 1999 because of backup accidents that had occurred.

The court ruled in favor of the township and denied death benefits. The judges wrote, “In cases where the workers’ compensation bar was pierced, courts have cited repeated or knowing violations of OSHA regulations. This court is not aware of any case law indicating that non-compliance with a non-binding advisory standard is sufficient to make a showing of intentional wrong.”

The court also said that, since warning stickers and pamphlets were distributed, LaPoint “should have appreciated the risk in riding on the truck in reverse.”

The family also disputed the witness testimony that LaPoint was getting ready to urinate into the back of the truck. The court said that wasn’t crucial to the case.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Mann v. Packer, Superior Crt. of NJ Appellate Div., No. A-1293-08T2, 1/13/10.

Criminal prosecution of companies where safety violations cause serious injuries or fatalities are rare in the U.S. With that in mind, it’s interesting to note how such cases are handled in another democracy.

In the last seven years, more than 70 plea bargain deals have been cut in Queensland, Australia, between companies with serious workplace accidents and the state government.

The Queensland state government recently settled with an electrical contractor, Stowe Australia. One of its workers was left a paraplegic after a 2007 industrial incident. The worker was helping unload an almost 900-pound switchboard when the equipment fell on him, causing severe spinal injuries.

In exchange for dropping criminal charges, Stowe agreed to make a formal statement of regret, improve its health and safety standards, publish an article on the incident, and provide funding to the Spinal Injuries Association.

For comparison, the trucking company that was transporting the switchboard was prosecuted in court and fined $45,000.

In another case, Sea World was initially prosecuted for a workplace injury case on charges that carried a maximum penalty of two years in prison and more than $1 million in fines. The government withdrew the criminal charges. In exchange, Sea World promised to spend almost $300,000 on safety improvements.

A spokesman for the government defended the settlements, saying they “require the employer to carry out a range of safety measures that extend well beyond the original breach. They are only entered into when the benefits for workers, the industry and the community can be clearly shown.”

The spokesman said the settlements pave the way for “long-lasting and more wide-ranging safety changes.” The government totals the number of safety enhancements at companies due to these settlements at more than $17 million.

What do you think about this method of holding companies responsible for serious injuries and fatalities? Let us know in the Comments Box below.

A worker tests positive for PCP right after he’s injured. Is he still able to collect workers’ comp benefits?

As this case shows, it’s sometimes a matter of who the workers’ comp commission decides to believe.

Carl Johnson, a truck driver, was lifting 80-pound boxes when he felt a sharp pain in his shoulder and lower back.

After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

Johnson claimed he didn’t use PCP and that he wasn’t impaired at work on the day of his injury.

Arkansas state law says comp can be denied when there is a positive drug test. However, if the worker can prove the drug use didn’t substantially cause the injury, comp can be awarded.

When the case was first heard, an administrative law judge found there was no evidence presented that Johnson appeared impaired.

Is worker’s word enough?

However, when the Workers’ Compensation Commission took up the case, it disagreed. The commission said it was up to Johnson to prove that he wasn’t impaired, and he presented no testimony other than his own to prove that.

He didn’t call on co-workers or customers to testify that he wasn’t impaired the day he was injured.

Johnson took the commission’s decision to the state appeals court.

The court said the burden to prove the PCP in his system didn’t cause his injury was on Johnson.

The court noted, “While Johnson’s testimony about his lifting injury might begin to carry this burden if credited 100%, the Commission was not required to believe him.”

Because the commission didn’t believe Johnson’s testimony, the court upheld the commission’s decision: Comp denied.

However, had the commission found reason to believe that Johnson wasn’t impaired by the drug use, he would have received comp payments.

How should cases where an injured worker tests positive for drug use be handled? Let us know what you think in the Comments Box below.

Cite: Johnson v. U.S. Food Service, Inc., AR Court of Appeals, No. CA09-851, 1/6/10.

Workers’ comp laws in some states do contain provisions to discourage employees from trying to cheat the system. Here’s one example:

A worker injured his back on the job while lifting boxes. He had substantial back surgery and received workers’ comp benefits because he wasn’t able to work.

The employee said due to pain in his leg from his back injury, he walked with a limp most of the time and that his activities were extremely limited. He said he could only “lift a little.”

However, video from the insurance company showed him bending, picking up and swinging his grandchildren, among other activities.

When he saw the insurance carrier’s doctor, he walked with a severe limp. However the doctor watched him walk out to the parking lot with only a slight limp.

The Workers’ Compensation Board in New York state ruled that, because of his exaggeration, benefits were cut off. But that’s not all.

The Board also, under law, has the discretion to disqualify someone from receiving any future workers’ comp benefits even if the person suffers a compensable injury in the future, and did so in this case.

The worker appealed to a state court which affirmed the comp board’s decision.

Do you think relating this story to employees during a safety meeting would discourage employees from trying to become comp cheats? Let us know in the Comments Box below.

Cite: Church v. Arrow Electric, 3rd App. Div. NY Supreme Crt., No. 503836, 1/7/10 (PDF).