Within the course of one week, an employee suffered an incident involving her leg at home and then another incident involving her leg at work. She applied for workers’ comp, claiming the injuries were caused by the work incident. Her employer denied her comp claim on the grounds that the first incident at home caused her injuries.

Cathlyn Acker was a meat department employee at a Whole Foods Market in North Carolina. Her job was to stock displays.

One day at work, she was carrying trays of chicken out of a walk-in cooler when her left foot got tangled in shelving. Acker says she “twisted and hopped and landed on her right leg.”

Her right leg became swollen. She was diagnosed with an “extensive post-traumatic bone bruise” and a tear in her meniscus.

She applied for workers’ comp, but Whole Foods denied the claim, saying the injuries could have come from an incident less than a week earlier when Acker stepped in a hole in her back yard and twisted her left ankle.

A workers’ comp hearing commissioner concluded Acker suffered a compensable injury to her right knee, left hip and back arising out of the workplace incident. On Appeal, the North Carolina Industrial Commission affirmed the commissioner’s decision and awarded Acker medical compensation, wage compensation and temporary partial disability payments.

Whole Foods took the case to the North Carolina Court of Appeals.

What did the doctors know?

The appeals court reviewed the evidence in the case.

The first doctor to see Acker diagnosed the bone bruises and meniscus tear and said they were “consistent with a trauma.”

When the doctor testified, he said Acker didn’t tell him about stepping in the hole at home. She only told him about the workplace incident. He said he was unable to know whether the earlier home incident caused her injuries.

Acker saw another doctor for an independent medical evaluation. That doctor testified her injuries were related to the workplace incident and that Acker told her she had no symptoms before she tripped at work. However, this doctor also said Acker didn’t tell her about stepping in the hole at home.

But this doctor observed in his report that, even if the meniscus tear existed before she tripped at work, the incident on-the-job would have aggravated any such pre-existing condition.

The Commission found the independent doctor testified to a reasonable degree of medical certainty that Acker’s injuries were the result of her workplace incident.

Before the appeals court, Whole Foods argued that neither the initial treating physician nor the doctor who performed the independent medical evaluation rendered a competent opinion that the work incident caused Acker’s injuries.

But the court rejected that argument. It noted the independent physician specifically noted that, even if there was a pre-existing injury, the work incident would have aggravated it. Work injuries that aggravate a previous condition are compensable under workers’ comp.

On top of that, the court noted that Whole Foods didn’t present any medical testimony contradicting the evidence presented by Acker.

For those reasons, the appeals court ruled there was competent evidence to support the Commission’s award of workers’ comp benefits to Acker. The court affirmed the workers’ comp benefits for Acker.

The two take-homes from this case:

• Workplace injuries that aggravate an employee’s pre-existing injury are often compensable under workers’ comp, and
• If you’re going to contest medical evidence presented by an employee in a workers’ comp case, you better have your own medical experts to back up your case.

Have you ever had a case in which it was questionable whether an employee’s injuries were caused at work or at home? Let us know about it in the comments below.

(Acker v. Whole Foods, Court of Appeals of NC, No. COA12-757, 1/15/13)

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The West Chemical and Fertilizer plant near Waco, Texas, may have been claiming an exemption to OSHA’s Process Safety Management (PSM) standard, according to reporting done by The Center for Public Integrity (CPI). OSHA’s PSM standard requires companies to properly manage hazards associated with processes using highly hazardous chemicals.

The exemption allows “retail facilities” to be exempt from PSM. To be considered a retail facility, more than half of the establishment’s income must be obtained from direct sales to end users. In the case of a fertilizer manufacturer, that could be accomplished by selling directly to farms.

This exemption was written into OSHA’s PSM standard as it appeared in the Federal Register (FR) on Feb. 24, 1992.

On top of that, The Fertilizer Institute, which bills itself as “the leading voice in the fertilizer industry,” asked OSHA to clarify that part of the PSM standard, shortly after it was published in the FR. In June 1992, OSHA issued a Standard Interpretation Letter, addressed to the Fertilizer Institute, confirming the exemption.

By being exempt from PSM, the West fertilizer plant wasn’t subject to OSHA inspections targeted to facilities covered under the standard.

And here’s the catch-22: OSHA doesn’t check on the validity of an exemption unless it inspects the site. Of course, the site was less likely to be inspected because of the exemption.

OSHA is also looking into whether the West facility was exempted from keeping injury and illness logs because it claimed it had fewer than 10 full-time employees. Once again, this would potentially subject the plant to fewer inspections. OSHA uses its Site Specific Targeting program to choose facilities to inspect because their OSHA logs show they had significantly more injuries and illnesses than the industry average.

Investigations into fertilizer plant explosion ongoing

What does the Fertilizer Institute think about the retail exemption in light of the explosion and deaths?

The institute notes the cause of the explosion hasn’t been determined. An OSHA inspection typically takes five to six months. But, the institute also says, “We will re-examine our stance if necessary when the report on the cause is made final.”

Besides being investigated by OSHA, the U.S. Chemical Safety Board (CSB) has also sent investigators to the scene.

Over its history, the CSB has investigated many of the worst industrial incidents in the U.S. involving worker deaths and serious injuries. What’s a common cause of these incidents? Deficient Process Safety Management:

• “We found serious deficiencies in the company’s process safety management program.” (Bayer CropScience Facility explosion that killed two workers, 2008)
• “Refinery Had Longstanding Process Safety Deficiencies.” (U.S. Chemical Safety Board Concludes “Organizational and Safety Deficiencies at All Levels of the BP Corporation” Caused March 2005 Texas City Disaster That Killed 15, Injured 180.)
• “Borden Chemical did not implement 1992 PHA (process hazard analysis as required by OSHA’s PSM standard) recommendations.” (Formosa Plastics Vinyl Chloride Explosion that killed five workers in 2004.)

Given that history, there’s a high likelihood the CSB’s report on the fertilizer plant explosion will contain recommendations regarding adherence to OSHA’s PSM standard.

What do you think about the so-called “retail exemption” to OSHA’s PSM standard? Let us know in the comments below.

The post Fertilizer plant explosion: Did facility have safety exemption? appeared first on Safety News Alert.

Another state court has weighed in on the matter.

Brandon Coats worked for Dish Network in Colorado.

Coats was paralyzed as a teenager in a car crash. He has been a medical marijuana patient in Colorado since 2009. He was fired in 2010 for failing a company drug test. Dish Network conducts random employee drug tests. It didn’t claim Coats was impaired on the job. Dish gave no other reason for the firing.

Coats says he used marijuana within the state license, never used it on Dish Network premises and was never under the influence at work.

Claiming it violated the Colorado Civil Rights Act which prohibits an employer from firing an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours,” Coats filed a lawsuit against Dish.

Dish claimed use of medical marijuana wasn’t lawful activity because it was prohibited under federal law.

A trial court agreed with Dish and threw out Coats’ lawsuit which led to his appeal to a higher state court.

How does federal law impact case?

Coats acknowledged to the Colorado Court of Appeals that marijuana use, even with a state medical-use license, is against federal law.

However he argued that his use was lawful because it is allowed under state law and federal law didn’t apply.

The court didn’t agree.

It said for any activity to be lawful in Colorado, it must be lawful under both state and federal laws. So, an activity that violates federal law but complies with state law can’t be lawful in the state.

The appeals court also noted that if the legislature wanted to insulate employees from being fired for activities that are illegal under federal law, it could have done so, but didn’t. Bills to do just that have been introduced in California. However, two times so far the bills haven’t had sufficient support to become law.

So, since Coats’ use of medical marijuana under a state license was — and still is — illegal under federal law, it could not be considered lawful activity. Coats’ lawsuit was thrown out.

The appeals court’s decision was split. One of the three judges dissented, basically agreeing with Coats that whether his marijuana use was legal or not should be measured only by state law.

Coats’ lawyer says they will try to take the case to the Colorado Supreme Court.

Colorado isn’t alone

Colorado made news recently because the state also approved recreational use of marijuana.

In another state where that was done, Washington, courts have also ruled that employers can fire medical pot users.

A Michigan court ruled Wal-Mart was allowed to fire an employee who was permitted to have medical marijuana.

Some states make it slightly more difficult to fire employees who have tested positive for marijuana. In several states, the employer must prove the employee was impaired by the marijuana use for the firing to be legal.

So it appears, overall, that the growing number of laws that allow marijuana use — whether for medical or recreational purposes — don’t change the situation for employers, at least not much. Companies can have zero-tolerance drug-use policies, including those for safety reasons. And employers can enforce these policies by firing employees who violate them. As is the case with all company rules regarding employee conduct, a key is to apply the policies equally to all workers.

What do you think of the Colorado court’s ruling? Should employers be able to fire workers for marijuana use, even if they have a medical license to use it? Should the company have to show that the employee was impaired at work before being able to fire the person? Let us know what you think in the comments below.

(Brandon Coats v. Dish Network, Colorado Court of Appeals, No. 12CA0595, 4/25/13)

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SNA first told you about this story last August.

Officer Kevin Schultz with the Pojoaque Tribal Police Department had taken a day off to chaperone a church youth group on a picnic. While there, he jumped into the Rio Grande River near Pilar, NM, and save a 12-year-old boy from drowning.

Immediately after saving the boy, Schultz collapsed face-down in shallow water.

A medical examiner says while entering the river, Schultz may have hit his head on a rock, and that led to his death.

His wife, Cheryl Schultz, sought workers’ comp death benefits.

A workers’ comp judge (WCJ) found two problems with the request for benefits:

• They were requested more than a year after the officer died, and
• He was off duty when the incident occurred.

‘We’ll take care of it’

Why did Cheryl Schultz wait more than a year to file for the benefits? One reason: The tribal police chief had told her he’d take care of filing the workers’ comp paperwork.

When she realized he hadn’t done that, she filed herself.

Cheryl Schultz appealed the WCJ’s decision to a trial court. Her argument: The delay in filing was caused by the employer’s conduct … or in this case, the lack of it.

But the trial court agreed with the WCJ. Last summer, Mrs. Schultz took her case to the New Mexico Supreme Court (NM SC).

The state’s highest court reversed the judgement of the WCJ and the trial court.

The NM SC noted that the state’s workers’ comp law had an exception to the one-year period for filing a death benefits claim: when the filing delay is caused by the employer’s conduct.

And in this case, the employer’s conduct — promising Mrs. Schultz that it would take care of the workers’ comp filing and then not doing so — did cause the delay.

Now the case will go back to the trial court to determine whether Officer Schultz died within the course and scope of his employment and whether Mrs. Schultz will receive workers’ comp death benefits.

Her attorney says he has a strong case in favor of the comp benefits. Officer Schultz is listed on the National Law Enforcement Officers Memorial in Washington, DC which is only for those who die in the line of duty. A detective with the Schultz’s police force sent the paperwork seeking this honor.

The attorney also has a letter from the lieutenant governor of Pojoaque Pueblo who wrote the tribal government considered Schultz’s death to be in the line of duty.

Do you think Schultz’s widow should get workers’ comp death benefits? Let us know in the comments below.

(Schultz v. Pojoaque Tribal Police Department, Supreme Court of NM, No. 33,372, 4/11/13)

The post Was police officer on duty at time of death? Widow seeks workers’ comp appeared first on Safety News Alert.

Tina Shannon worked as a surgical technician at the Roane Medical Center in Harriman, TN. She regularly worked 7 a.m. to 3 p.m. and was also on call for various rotating shifts.

On April 19, 2010, Shannon was still on call as she was driving home after assisting with emergency surgery. Another car crossed the center line of the road and crashed into Shannon’s vehicle. She suffered serious injuries, including a splintered tibia that required three separate surgeries. She missed almost nine months of work as a result.

Shannon filed for workers’ comp benefits, but the hospital denied them, arguing she wasn’t injured in the course and scope of her employment.

Her case went to trial, and the court also denied her benefits under the coming and going rule, that states injuries that occur when an employee is injured traveling to or from work are generally not compensable.

Shannon appealed the trial court’s ruling. In Tennessee, those appeals go directly to a special panel of the state’s supreme court.

No clear-cut rule

The TN Supreme Court found there was only one question in Shannon’s case:

“whether being injured while on call under these particular circumstances constitutes as injury arising out of and occurring in the course of employment.”

The court found there was no question that her injury arose out of her employment, because she wouldn’t have been driving home at 2:30 a.m. if she hadn’t been called into work.

The real issue was whether the injury occurred in the course of her employment.

If the coming and going rule was absolute, there’d be no question that Shannon wouldn’t qualify for workers’ comp benefits. But there are exceptions to the rule:

• when an employee is injured in a company vehicle
• when the travel itself is a substantial part of the services for which the employee is compensated
• if the employee is using a vehicle to transport materials used in employment, or
• if the employee is compensated for travel expenses.

Although the TN Supreme Court had previously addressed the question of workers’ comp benefits for injuries when an employee is on call, Shannon’s situation was different from its three previous rulings on the subject.

As state courts sometimes do, the TN Supreme Court turned to other states to see how they’ve ruled. That wasn’t much help. There was no clear-cut majority rule about whether injuries to on-call employees qualify for workers’ comp benefits.

“It is not possible to categorically grant or deny benefits when an on-call employee is injured while in transit to or from work,” the TN Supreme Court wrote. Therefore, the court said several factors should be considered, including these:

• whether the employee is paid for time spent on call, either hourly or as an increased salary
• the nature of any restrictions imposed by the employer during the on-call hours
• the extent to which the employer benefits from the on-call system, and
• the extent to which the on-call system requires additional travel that subjects the employee to increased risk compared to an ordinary commuter.

In Shannon’s case:

• She was paid an hourly wage by the hospital for the time she spent on call
• The hospital imposed several restrictions on its staffers during their on-call hours including that they remain in contact by phone, they be able to get to the hospital within 30 minutes and that they refrain from consuming alcohol during their on-call hours
• The on-call system permitted the hospital to offer operating room services 24 hours a day, 7 days a week even though it didn’t have regular surgical staff on second and third shifts, and
• It also subjected the employees to a greater risk by requiring more frequent and extensive travel, often at odd hours.

For those reasons, the TN Supreme Court found Shannon’s injury did occur in the course of her employment and she should get workers’ comp benefits for the 37 weeks she missed work.

In its opinion, the court noted that this does not extend workers’ comp benefits to all on-call employees in Tennessee who are injured while traveling home from work while on call. Each case must be considered on its merits.

And the court’s research on similar rulings in other states shows there are no clear-cut rules in cases involving injuries to workers who were on call. However, the questions the court posed in this case can provide some guidelines on the likelihood that workers’ comp will apply to employees injured while on call. Situations will vary from state to state due to the differences in workers’ comp laws and state court rulings.

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

(Shannon v. Roane Medical Center, Supreme Court of TN, No. E2011-02649-WC-R3-WC, 3/13/13)

The post When does workers’ comp kick in for on-call employees? appeared first on Safety News Alert.

Neil Shaw, currently BP’s COO for global projects, made that statement as part of his testimony in the trial to determine BP’s liability for the rig explosion that killed 11 workers and caused the worst offshore oil spill in U.S. history.

Of course, the places we’ve heard the “safety is our top priority” phrase before are:

• our own workplaces
• other workplaces
• from executives who speak at safety conferences, and
• just about anywhere in the business world when an executive is asked the question, “How does employee safety figure into your organization?”

It’s cliché.

Oh, many business people actually mean it. They’re the ones who, every day, send their employees home in the same condition they came into work because of their commitment to safety.

Just how cliché is the phrase? It’s so cliché that executives had to develop a new one.

Have you heard this one? “Priorities can change. Therefore, safety is a value at our company. Values don’t change.”

That line has been bouncing around for at least a few years now. It has also reached cliché status.

Words are words without actions to back them up. Just what do the words “safety is our top priority” mean, and how does a company really show that?

‘Safety was on decline for years’

Getting back to BP for a moment Shaw also stated at the trial that when he took the job with responsibility for Gulf of Mexico drilling in 2008, safety performance had been on the decline for years, and he set out to get it back on track.

Two years later, on April 20, 2010, Deepwater Horizon happened.

Shaw says he implemented a new safety plan for BP’s Gulf of Mexico drilling sites in 2009. He says his team reviewed every single personal and process safety incident on a weekly basis.

But an expert testifying for the plaintiffs in the trial said BP never fully implemented the plan.

Shaw said in his weekly meetings with other BP executives, “The first thing we always talked about was safety.”

Too bad that’s also become a cliché.

‘Every ______ counts’

Plaintiffs have argued at the trial that BP sacrificed safety for production. They point to BP’s mantra at the time, “Every dollar counts,” as proof.

In this post, we’ve been pretty critical of clichés. But, as long as BP was going to use one about what really counts, maybe another six-letter word instead of “dollar” would have served the company better: “Every person counts.”

What’s interesting about the news coverage of of Shaw’s testimony is that he seems to speak about safety in the abstract. It’s a thing … something you do at work.

It might have been illuminating to challenge Shaw to remember, since he talked about them every week, one specific safety incident involving a particular employee. If it was a serious injury (one that required a hospital visit), could he remember the employee’s name? What job did the person do for BP? How did the injury happen? What did the company do to make sure that type of injury was less likely to happen again?

More than spouting clichés, like “safety is our top priority” and “we begin every meeting with safety,” knowing those sort of facts about his company’s safety record would have been a better test of a BP executive’s commitment to workplace safety, because, after all, safety is about people.

What’s your experience been with top executives regarding their commitment to safety? Do they spout similar clichés without backing up their words with actions? Do you have an example of executives showing they had real commitments to safety? Share you stories in the comment box below.

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Quest’s Drug Testing Index (DTI) shows that advances in oral fluid testing technology implemented in late 2011 have led to more positives for marijuana use than using urine testing, which is more prone to cheating.

“The higher oral fluid detection rate for marijuana strongly suggests that observed oral fluid collection curbs evasive donor behavior,” said Dr. Barry Sample, Director of Science and Technology for Quest. “Simply put, it is extremely difficult to cheat an oral fluid collection when someone is observing.”

Oral fluid specimens are collected when applicants or employees place a swab in their mouth under direct observation of the drug test administrator.

Urine specimen collection is unobserved, which allows people who want to evade detection to cheat. Sometimes they add substances to their own urine. Others turn in someone else’s sample. There have even been devices to help men pass observed urine collection, although they’ve now been outlawed.

Both urine and oral testing are highly effective in detecting recent drug use.

The oral fluid positive rate for marijuana was 70% higher than that of urine (3.4% vs. 2.0%) in the first half of 2012, the period for which the most recent statistics are available from Quest.

More applicants test positive

Overall, Quest says pre-employment drug test positives increased by 5.7% from 2011 to the first half of 2012.

However, random drug testing among the U.S. general workforce was down 5.8% comparing the same two periods.

Marijuana remains the most commonly detected drug. Urine testing for the U.S. general workforce turns up a 2.0% positive rate. The next highest is amphetamines with a 0.86% positive rate. Opiates comes in third.

Amphetamine use continues its five-year upward trend. In urine testing, the amphetamine positivity rate increased 11.7%.

Cocaine use is decreasing. In the first half of 2012, the cocaine positive rate was down 14.6% compared to 2011.

Overall positive rate stalls

After seeing a significant drop in overall positive drug test rates from 1988 (13.6%) through 2005 (4.1%) for the overall U.S. workforce, that number has stalled in recent years:

• 2006: 3.8%
• 2007: 3.8%
• 2008: 3.6%
• 2009: 3.6%
• 2010: 3.5%
• 2011: 3.5%, and
• first half of 2012: 3.5%.

But Quest’s statistics show that when workers know they’ll be subject to occasional testing, they are less likely to be drug users. As we already pointed out, random drug testing positives are down in the most recent numbers. And the positive rate for federally mandated, safety-sensitive jobs is much lower than that of the general workforce: 1.7% vs. 4.1%.

Positive rates are much higher when the reason for the drug test is for cause in the general workforce:

• for cause: 26.1%
• follow-up: 6.5%
• returned to duty: 5.5%
• post accident: 5.4%
• random: 4.9%
• pre-employment: 3.7%, and
• periodic: 1.3%.

How does your region compare?

Quest’s DTI report also sorts its testing information by state and region, including maps of the U.S. showing overall positive rates for:

• all drugs
• amphetamines
• cocaine
• marijuana positive rates
• opiates, and
• phencyclidine.

Quest’s latest DTI is based on more than 3.4 million urine and 340,000 oral fluid tests performed from January through June 2012.

Increase awareness at your company

Do all these statistics make you think, maybe it’s time to review your company’s drug policy?

There are free resources to do just that on the web from the U.S. Department of Labor. DOL’s Drug-Free Workplace Policy Builder guides you through the different elements of a policy, asking you to choose among various options that are appropriate for your workplace.

The post Newer tests proven to cut cheating on drug testing appeared first on Safety News Alert.

Earl Sterling worked at a machinist for Eaton Corp. in Mississippi.

In June 2008, he began wearing a new pair of steel-toed boots which were required for his job. He claimed “his feet started immediately throbbing” after wearing the boots.

He developed a blister on his foot. After it popped and began draining, he sought treatment from his family physician. When the doctor saw Sterling, he had a high fever and was delirious, so he was admitted to the hospital.

Things went from bad to worse. Doctors at the hospital determined Sterling had developed a staph infection. Less than a month after he said he started wearing the new steel-toed boots, Sterling’s right leg was amputated below the knee.

Boots at fault?

Sterling claimed the blister was a result of wearing his work boots and had caused his injury and the infection. He requested disability benefits for the injury.

Eaton said the blister didn’t cause the infection, rather it was the other way around: The infection caused the blister. The company said this wasn’t a workplace injury, and therefore Sterling shouldn’t receive workers’ comp benefits.

The case went to the Mississippi Workers’ Compensation Commission (WCC). An administrative judge denied Sterling’s request for comp benefits. On appeal, the WCC upheld the judge’s decision.

Next, Sterling took his case to the Court of Appeals of Mississippi.

Medical evidence is key

The WCC had ruled that Sterling failed to make his case that his injury was work-related based on the medical evidence. This is where the appeals court focused in its review of the case.

Sterling’s family physician opined that the blister from the boot caused the infection which led to the leg amputation.

Both other doctors disagreed. The surgeon who amputated Sterling’s leg said tests performed in the hospital showed the worker was a “poorly controlled diabetic.” Sterling’s hemoglobin test indicated his blood sugar had been “abnormally high” for 90 days before his hospitalization.

Sterling’s surgeon certainly had experience with this sort of case. He worked in a wound-care center and treated diabetics on a daily basis.

Another doctor, an expert in infectious disease, said Sterling’s blister wasn’t in a spot on his foot where friction blisters due to shoes would normally form — it was in between his toes. Also, a blister caused by chafing normally doesn’t continue to grow after the source of friction is removed. Sterling testified he stopped wearing the boots after a week.

The infectious disease expert agreed that in this case, the the infection caused the blister, not the other way around. He also pointed to Sterling’s poorly controlled diabetes and noted that staph is one of the most common organisms that infect diabetic patients.

One more point: Sterling didn’t help his own case. The administrative judge and WCC noted that his testimony was inconsistent. He was confused about the exact date of his injury. He also didn’t report it to his employer before seeing his doctor.

The administrative judge and WCC found the surgeon’s and infectious disease expert’s testimony were more credible than that of Sterling’s family physician. The appeals court agreed, and for that reason, it upheld the WCC’s decision: Sterling would not receive workers’ comp because medical evidence indicated this wasn’t a work-related injury.

Diabetes and foot care

An estimated 25.8 million children and adults in the United States (8.3% of the population) have diabetes.

So, almost one in ten of your workers is probably diabetic.

Foot ulcers are the most common reason for hospital stays for people with diabetes.

In this case, Sterling waited a week, possibly longer, after discovering his foot blister before seeing a doctor. He ended up with an amputated leg.

You can remind your employees as part of a wellness program that if they have diabetes, they should call their doctor if they have any of these signs and symptoms of infection:

• redness, increased warmth, or swelling around the wound
• extra drainage
• pus
• odor
• fever or chills
• increased pain
• increased firmness around the wound, or
• the foot ulcer is very white, blue, or black.

(Sterling v. Eaton Corp., Court of Appeals of MS, No. 2011-WC-1320-COA, 3/5/13)

The post Did foot blister lead to costly workers’ comp case? appeared first on Safety News Alert.

Jean O’Connor was a duty nurse for Med-Center Home Health Care in Connecticut. While in the course of her employment, she slipped on ice in a patient’s driveway and injured her hand, wrist, knee and shoulder. Med-Center accepted and covered these injuries.

Several years later, O’Connor requested coverage for a partial knee replacement. In the course of seeking compensation for her surgery, O’Connor was evaluated by two orthopedic doctors, who both said she was capable of sedentary work. That led Med-Center to request reduction or discontinuation of O’Connor’s workers’ comp temporary total disability benefits. A workers’ comp commissioner heard the case.

O’Connor submitted a report from her treating physician, stating that she was “functionally disabled.” More specifically, the doctor said, “There is little in terms of work capacities that she could tolerate other than sedentary capacities, but her ability to get to and from her house to place of employment is now severely limited.”

Another doctor testified that O’Connor was also at risk of “potentially fatal blood clots.”

O’Connor also testified before the commissioner that she couldn’t perform everyday activities, such as cleaning, doing laundry or driving.

The commissioner ruled that O’Connor was totally disabled and that Med-Center should pay per workers’ comp benefits. On appeal, the workers’ comp board agreed with the commissioner.

Next stop for Med-Center: a Connecticut appeals court.

Doctor’s word or commissioner’s opinion?

The employer argued that the finding that O’Connor should be awarded total disability was made without receiving direct medical evidence that she was totally disabled.

The appeals court noted that no doctor or occupational specialist determined that O’Connor was totally disabled.

But the court disagreed with Med-Center’s assertion that O’Connor couldn’t be found totally disabled without direct medical evidence indicating that.

“The evaluation of whether a claimant is totally disabled is a holistic determination of work capacity, rather than a medical determination,” the court wrote.

Given the medical testimony and O’Connor’s own credible description of what she was capable of doing, the court ruled the commissioner could have found as he did, that she was totally disabled.

“The commissioner reasonably and logically could have concluded that the plaintiff’s inability to sit for long periods, stand for long periods, repeatedly get up from a chair, twist, lift or drive, combined with the pain associated with her condition, rendered her temporarily totally incapacitated from work,” the court said.

For that reason, the commissioner’s decision was affirmed.

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

(O’Connor v. Med-Center Home Health Care, Appellate Court of CT, No. AC30200, 3/5/13)

Duration of temporary total disability increasing

Having workers on temporary total disability (TTD) is costly.

The National Council on Compensation Insurance (NCCI) has found the average duration of TTD benefits has been increasing since the start of the recession in 2008. The rate of increase slowed somewhat in 2010 and 2011, the period for which the most recent statistics are available. The study includes data from 45 states plus Washington, DC.

The mean duration of TTD benefits rose from 130 days in 2005, to 147 days in 2009 and 149 days in 2011.

Some other statistics about TTD from NCCI:

• Contracting (plumbing, construction) consistently has the highest duration of all the industry groups (the other four groups are Manufacturing, Goods & Services, Office & Clerical, and Miscellaneous which includes trucking and public safety workers). Contracting claims tend to be for more severe injuries than claims in other industries because of the relatively high exposure to hazardous work conditions (ex. working at heights).
• The type of injury with the longest duration is fractures. The duration of hernia claims has declined significantly since 2000 because of improved surgical treatments.
• The body part with the longest duration is the wrist. Ankle injury duration has increase more than any other body part from 1998 to present.

The post Doctors didn’t say she was totally disabled; judge says she is anyway appeared first on Safety News Alert.

A Wal-Mart loss prevention employee chased a shoplifter, and in the process, a co-worker was knocked over and killed. Is Wal-Mart liable for the employee’s death? How did employee training factor into this case?

The loss prevention employee, Sean Respass, was chasing a shoplifting suspect at a Wilson, NC, Wal-Mart. The suspect and Respass collided with Wal-Mart greeter Rochelle Pender, who was knocked to the floor and suffered a fatal head injury.

Pender’s estate filed a wrongful death lawsuit against Wal-Mart, Respass and the shoplifter. Wal-Mart and Respass asked for the case to be thrown out, and a state judge agreed. The estate took its case to the North Carolina Court of Appeals.

Normally, death benefits under state workers’ comp law would be the estate’s exclusive remedy. There are some limited exceptions, including if an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees.

Pender’s estate argued that employer misconduct existed because:

• Wal-Mart had a goal for loss prevention workers to catch eight shoplifters a month, and
• Respass violated Wal-Mart’s no-chase police regarding shoplifters.

Was this an egregious case?

Respass testified that all loss prevention employees were expected to reach a quota of eight apprehensions per month. The policy wasn’t in writing. Respass says it was communicated to him verbally.

Pender’s estate argued that the quota created an “incentive for Respass to engage in conduct that was substantially certain to cause serious injury or death.”

But the appeals court didn’t buy that argument. The exception to workers’ comp’s exclusive remedy provision is only applied in the most egregious cases of employer misconduct. The court noted Wal-Mart instituted its no-chase policy regarding shoplifters to protect the safety of its employees and customers. Wal-Mart fired Respass for violating that policy. Also, there was no record of injuries resulting from the monthly quota.

For that reason, the court said there was no evidence of misconduct by Wal-Mart.

The court also ruled that Respass’ decision to chase the alleged shoplifter also didn’t rise to the level of willful, wanton or reckless behavior.

The appeals court affirmed the lower court’s decision and threw out the lawsuits against Wal-Mart and Respass. It allowed a potential wrongful death lawsuit against the alleged shoplifter to go forward.

(Estate of Rochelle Pender v. Respass, Wal-Mart, NC Court of Appeals, No. 11-CVS-1144, 2/5/13)

Benefit of written safety policy

While the quota policy wasn’t in writing, Wal-Mart’s no-chase policy was. It said all loss prevention employees must never:

• chase a shoplifter more than ten feet, and
• engage in a physical confrontation with a customer or shoplifter.

The purpose of the policy was to ensure the safety of all people, employees and customers, on Wal-Mart’s property.

This written policy, and the fact that Wal-Mart followed through on it by firing Respass, was key in the appeals court’s decision to throw out the wrongful death lawsuit against the retailer.

Of course, having your safety policies in writing is an automatic benefit for training your employees on how to work safely.

But it also has another legal benefit besides the one in this workers’ comp case.

What happens if you’ve provided repeated safety training to your employees, yet a worker violates safety rules which leads to an OSHA investigation?

Companies can argue this is a case of unpreventable employee misconduct.

In one recent case, Otis Elevator was able to get an OSHA fine thrown out by the Occupational Safety and Health Review Commission.

A mechanic and apprentice were repairing an elevator. The mechanic told the apprentice to wait on the elevator’s roof until a replacement part arrived.

At some point, the apprentice climbed onto a railing on top of the car and looked into the shaft of an adjoining elevator. At that moment, an elevator car descended and struck the apprentice in the head, killing him.

OSHA issued one General Duty Clause violation. But on appeal, an Occupational Safety and Health Review Commission decision said there was nothing more Otis Elevator could have done to prevent the fatality. The commission threw out the OSHA citation.

The post Employee knocked over, killed in shoplifter chase: Is employer liable? appeared first on Safety News Alert.

Workplace injuries and other safety incidents must be understood as a source of knowledge.

That’s one of the main points in the paper, Workplace accidents as a source of knowledge: opportunities and obstacles, by Hernani Neto of the Univeresity of Porto, Portugal, published in the International Journal of Human Factors and Ergonomics.

However, here is another point that companies need to understand: Safety incidents don’t automatically become an effective source of knowledge. Companies have to work at it.

Just because a company suffered a close call or an incident with just minor injuries doesn’t mean that it will automatically learn from the incident and prevent similar ones from occurring in the future.

Specifically, companies have to work to break down barriers to the spread of information obtained from the investigation of safety incidents.

What causes these barriers? There are several factors.

In a survey of employees at one company that took part in the study, 71% said they avoided reporting smaller safety incidents that didn’t cause an injury or impede work.

Why didn’t the workers report these smaller incidents which could foreshadow larger ones? Some workers felt guilty or wanted to avoid punishment.

Culture of denial about workplace injuries

But there’s a bigger reason than that: Workers were part of a “culture of denial.” In other words, they thought a more serious incident couldn’t happen in their workplace.

Dodging a bullet in and of itself encourages workers to adopt the thinking that “it can’t happen here.”

And the culture of denial isn’t limited to workplaces that are more prone to incidents and injuries. One reason workers might be in denial is because their workplace has a lower than average rate of injuries.

Another barrier that appears: Companies don’t have a system to spread the information gained from an investigation. In other words, an analysis is completed, but the results don’t get spread to employees. Or, in some cases, the results are shared only with the employees who were most closely affected by the incident, while the learning could be beneficial to a broader range or all workers.

Finally, in some cases, incidents are reported; investigations are done; results are communicated. But training to avoid a similar incident in the future isn’t developed and provided. In other words, the learning isn’t reinforced on a regular basis.

Breaking down the barriers

How can companies break down the barriers to learning through the investigation of safety incidents?

The study recommends that companies develop systems to make sure the learning cycle from an incident is completed.

One example is a system developed by Celeste Jacinto of Portugal, known as RIAAT in Portuguese, translated as “the recording, investigation and analysis of accidents at work.”

Jacinto suggests the use of a standardized form to report the basic facts and circumstances involving an incident or dangerous condition. Included on the form:

• names of people involved
• room for a full description of what happened or what the hazard is
• any known active failures that contributed to the incident, and
• a list of witnesses.

The form is accompanied by a user’s manual with specific instructions on how to fill out the form.

The investigation and analysis occurs in four layers:

• People: analysis of human failures and individual factors
• Workplace factors: Examples are insufficient lighting, slippery floor
• Management factors: Examples are management of contractors, maintenance management, training policy, safety policy
• Regulatory factors: What safety regulations were violated?

When the investigation and analysis are completed, a plan of action needs to be developed.

Finally, it must be determined exactly how the plan of action is going to be implemented. Who are the targeted people who need to learn from the investigation of the incident?

Forms are provided for all steps of the process to serve as checklists. Have all the steps been completed?

One reaction to systematizing the incident investigation/learning process might be, this sounds like an awful amount of work.

But this gets back to one of the main findings of this study: Learning from a workplace safety incident won’t happen automatically. Companies have to take the necessary steps to ensure employees get the full benefit of any learning from a previous incident to make sure a similar, and possibly worse, one won’t happen.

Let us know in the comments section what you think about this study and how you handle learning from safety incidents at your company.

The post Overcoming 3 barriers to learning from workplace injuries appeared first on Safety News Alert.

The main conclusion of the Government Accountability Office (GAO) report, Further Steps by OSHA Would Enhance Monitoring of Enforcement and Effectiveness, is:

“OSHA and state-run programs conduct a number of enforcement activities to protect the nation’s workers, but OSHA knows little about their effectiveness. While data on the number of inspections conducted and violations identified at worksites are useful ways to monitor federal and state enforcement activities, they do not provide the type of outcome-oriented information needed to determine which enforcement activities are most effective in ensuring employer compliance and reducing risks to workers.”

The history behind this study dates back seven years.

During an 18-month period from 2006 to 2008, a dozen workers died on construction sites in Las Vegas. Both Congress and OSHA looked into Nevada’s state-run OSHA program and found deficiencies, launching a closer look at the half of all states with similar programs.

So the GAO wanted to examine:

1. how OSHA’s monitoring of its own and state enforcement efforts compare, and
2. recent steps OSHA has taken to evaluate the effectiveness of federal and state enforcement efforts.

It may come as no surprise that the GAO found federal OSHA monitors its own enforcement activities more closely, frequently and consistently than it checks the state programs.

But, as OSHA notes in a response to the GAO report, it is partially up to the states to monitor their own programs.

While comparing how the effectiveness of the federal and state programs is a key part of the report, a bigger question arises: Has OSHA tied what it measures to outcomes instead of just outputs?

Do more fines equal fewer injuries?

Example: OSHA has compared various measures of its federal program and state-run programs. The breakdown in fiscal year 2012:

• State-run programs conducted more total inspections than federal OSHA
• State-run programs issued more total violations than federal OSHA
• Federal OSHA issued more violations categorized as serious than state-run programs
• Federal OSHA issued higher penalties in dollars, and
• Only 3 out of 22 state-run programs (California, Kansas and Nevada) had average penalty amounts equal to or greater than federal OSHA.

So, now we know how the states compare to the federal program. In its report, the GAO said, “OSHA recently developed several initiatives to better assess the effectiveness of state and federal enforcement efforts.”

But OSHA’s measures are still lacking in one area, according to the GAO. “It is unclear, however, how some of these initiatives will help OSHA demonstrate which activities resulted in desired outcomes — a reduction of worker fatalities, injuries and illnesses.”

The GAO says OSHA is measuring activities conducted (outputs), not effectiveness (outcomes).

And this circles back to the comparison between the federal and state programs. “OSHA’s difficulty in demonstrating the effectiveness of its enforcement efforts has affected its ability to convince states to implement enforcement changes OSHA believes will result in better outcomes.”

OSHA defends its practices

In a letter responding to the GAO report, OSHA chief David Michaels noted that three recent academic studies show OSHA’s enforcement activities are associated with lower injury rates, number of injury claims and lost workdays.

Michaels’ letter also says, “OSHA agrees with the essence of the GAO’s recommendations, including your analysis and suggestions on how to better use out data.”

But OSHA also takes some exceptions to the GAO report. “OSHA is concerned that the draft report may overemphasize the significance of outcome measurements, such as injury and fatality rates, in determining the effectiveness of state safety and health programs.”

“Over-reliance on injury rates, therefore, would not adequately address the requirements of the [Occupational Safety and Health] Act,” that state-run programs be at least as effective as federal OSHA.

In other words, to fulfill what is required of it regarding state-run programs, federal OSHA is required to measure such things as number of inspections conducted.

Michaels says it’s been OSHA’s experience that injury rates over short periods of time may not be a reliable indicator of state-run program quality. However, the OSHA administrator’s letter goes on to note that injury and illness rates help measure the effects of OSHA enforcement over long periods.

Requirements of the OSH Act

Michaels’ point about having to fulfill what is required of federal OSHA in the OSH Act regarding state-run programs gets back to the narrower message of the GAO report: There are differences in how effectiveness of the federal and state programs are measured.

But, taking a look at the larger picture, here is what is stated at the beginning of the OSH Act of 1970:

“An Act to assure safe and healthful working conditions for working men and women.”

No one will argue that the main purpose of the OSH Act is to reduce the number of worker fatalities, injuries and illnesses. And that’s the larger point of the GAO report: Measuring outputs (number of inspections, dollar amounts, etc.) isn’t enough. Outcomes (fewer injuries) must be measured as well to assure safe working conditions.

OSHA points to three recent research studies that back up the link between strict enforcement/penalties and fewer injuries. But the GAO report says, effectively, that OSHA hasn’t done a good enough job itself of making that connection as it measures its own effectiveness.

Until OSHA becomes more effective at making that connection, efforts by the current administration and Democrats in Congress to boost OSHA penalties through legislation will continue to go nowhere.

What do you make of the GAO report? Do you think there is enough evidence linking OSHA penalties to a reduction in injuries? Let us know what you think in the comments below.

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Danny Douglas worked as a computer support analyst for Ad Astra, a software company in Overland Park, KS.

On Nov. 3, 2006, an email invited employees to a company-sponsored event that afternoon at an indoor racing facility. Employees could either attend the event or remain at work.

The company covered all of the event expenses, including food. Employees were paid while attending.

At the event, Ad Astra’s owner gave a brief pep talk about one of the company’s upcoming products. The  owner then divided the employees into teams and asked them to compete for prizes. The teams with the fastest go-cart lap times would win.

While racing his go-cart, Douglas had to sharply turn to avoid a collision with another go-cart that was stopped on the track. While traveling at about 25 miles per hour, Douglas crashed his go-cart into a tire wall and was thrown from the vehicle, landing on his right side.

Later that night, Douglas sought medical treatment. He suffered a rib fracture and a lung injury that required surgery.

Douglas applied for workers’ comp benefits. Ad Astra denied his claim because Douglas was injured at a recreational event that he wasn’t required to attend and his activities weren’t work-related.

The employee saw things differently. Douglas said he felt pressured to attend the event. He said he normally wouldn’t race a go-cart, but he agreed to because he wanted to be “part of the team.”

An administrative law judge ruled Douglas could receive workers’ comp benefits for his injuries. Ad Astra appealed to the Kansas Workers’ Compensation Board.

Was event purely recreational/social?

The company pointed to the state workers’ comp law which says:

“The words ‘arising out of and in the course of employment’ … shall not be construed to include injuries to employees while engaged in recreational or social events under circumstances where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or specifically instructed to be performed by the employer.”

The Board concluded that Kansas law didn’t define what is a recreational or social event. So it used three factors in Larson’s Workers’ Compensation Law, a law book cited by courts in workers’ comp cases in all U.S. states.

Larson’s lists three factors for determining whether recreational and social activities fall within the course of a worker’s employment:

1. whether the employer expressly or impliedly requires participation
2. whether the employer derives a benefit from the employee’s participation beyond the employee’s health and morale, and
3. whether the activities occur on the employer’s premises during lunch or a recreation period as a regular incident of employment.

Using this three-part test, the Board found the go-cart racing was not a purely recreational or social event. Douglas said he believed participation in the event was required. The only alternative was to remain at work, effectively motivating employees to go to the race park. Also, Ad Astra’s owners gave a speech regarding a new product and assigned employees to racing teams for the event, implying this was a team-building activity.

And while the injury didn’t occur on Ad Astra’s property, it happened on premises the company reserved exclusively for its employees to use on the day of the go-cart races. The fact employees were paid for their time at the track was also a consideration.

For those reasons, the Board found that Douglas’ injuries did not occur during a recreational or social event. Therefore he could receive workers’ comp benefits.

Did Board use correct test?

After the Board decision, Ad Astra took its case to the Kansas Court of Appeals. The company argued the Board shouldn’t have used the Larson’s test. Instead, it should have used the plain language included in the state’s workers’ comp law.

But the appeals court didn’t see it that way. The majority found it was appropriate to use the Larson’s factors.

As you might guess, Ad Astra appealed to the Kansas Supreme Court.

The state’s highest court agreed with Ad Astra that the lower courts unnecessarily used the Larson’s test in this case. The court said the definition of a recreational event in the Kansas workers’ comp law was sufficient. However, this isn’t likely to change the result.

The court noted that, in Kansas law, injuries during recreational activities are only excluded from comp coverage “where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or as specifically instructed to be performed by the employer.”

The Supreme Court said there was sufficient evidence to support the idea that Douglas was “under some duty” to attend the go-cart event. The court said Douglas was mandated by his employer to be in one of two places: either at work or at the race facility.

Another problem for the company: The owners divided workers into teams to race the go-carts, effectively telling Douglas to participate in the race.

The supreme court sent the case back to the Board for further consideration. But the high court’s guidance is clear: There was enough evidence this was not purely a recreational activity. It appears Douglas will be able to collect workers’ comp benefits.

Does this throw a wet blanket on recreational and social activities sponsored by companies? Not necessarily. Employee participation must truly be voluntary. And executives should steer very clear from giving work-related speeches at these events. Sticking to the mantra of not mixing work and play is a good idea for any employer looking to avoid workers’ comp claims for employee injuries at company-sponsored fun events.

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

(Douglas v. Ad Astra Information Systems, Supreme Court of KS, No. 101,445, 2/8/13)

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Alfred Napierski, a plumber, injured his leg on the job when a ditch collapsed. His employer, Scobell Co., accepted liability, and Napierski received total disability benefits under workers’ comp.

Scobell referred Napierski to a company that helps employees return to work. The firm found the former plumber a full-time sedentary job in telephone customer service at another company. The job was funded by Scobell.

The location of Napierski’s customer service job moved because of a mouse infestation. When he noticed mouse feces in paperwork that had been transported to the new location, he quit on the spot. He said his employer was “playing games” with him.

A worker’s comp judge (WCJ) found Napierski refused in bad faith to continue in the light duty job. Therefore, his benefits were reduced to a partial disability rate — the difference between what he would have earned as a plumber and the customer service job. His new benefit paid about $375 per week.

Five years later, Napierski asked Scobell to fund the light duty job for him again so he could return to work. When he didn’t hear back from his former employer, Napierski filed a petition to have his total disability benefits reinstated. Scobell said since Napierski left the light-duty job, he wasn’t entitled to it.

The WCJ rejected Napierski’s request, citing state law that said the only way he could get total disability benefits back was to prove that his medical condition had worsened to the point that he could no longer do the sedentary customer service job. That wasn’t the case, here.

The WCJ concluded it wouldn’t be fair to allow Napierski to avoid the legal consequences of refusing the light-duty job by reinstating him to it five years later. The judge denied his request to return to total disability benefits.

Napierski took his case to a state court.

Is a funded light-duty job different?

The former plumber acknowledged that previous court rulings in Pennsylvania stated once an injured employee voluntarily walked out on a light-duty job, the employer no longer had to hold the job open.

But Napierski argued his situation was different because Scobell funded his light-duty job at another company. The former plumber said leaving a funded job in bad faith didn’t mean his employer shouldn’t have to provide him a job because he regrets his earlier refusal of work.

Nice try, said the court. The judges ruled that it didn’t matter whether the job was with his former employer or funded by his former employer at another company. If Napierski walked out — and the mouse droppings didn’t matter — he was no longer entitled to the light-duty position. (PDF of decision.)

It would have been a different case had the company eliminated the light-duty job. In that case, Napierski would have been eligible to have his total disability benefits reinstated.

The take-home: Injured workers can’t just quit a light-duty job. Having a light-duty plan can save your company money in workers’ comp costs.

A side note: Do you have workers’ comp cases that go back several years, or maybe even decades? You’re not alone. This case dates back to 1995 when Napierski was originally injured.

One situation when they can refuse

While it may be difficult for injured employees to refuse light-duty assignments and be returned to workers’ comp benefits, it’s not impossible.

Example: A truck driver injured his shoulder. His employer offered him a light-duty job … 387 miles away in its offices.

The company said it would cover the employee’s costs to allow him to return home every other weekend.

However, the driver was able to return home every weekend when he was on the road, and sometimes during the week, too.

The driver declined the light-duty offer, and the company suspended his workers’ comp benefits.

The employee appealed, and a workers’ comp commissioner ruled the company didn’t offer “suitable” light duty. Therefore, the driver’s workers’ comp benefits had to be reinstated.

The case was appealed all the way to the Iowa Supreme Court, which upheld the workers’ comp commissioner’s initial ruling.

What do you think of the courts’ rulings in these cases? Let us know in the comments below.

(Napierski v. Scobell Co., Commonwealth Court of PA, No. 330 C.D. 2012, 1/10/13)

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State laws make workers’ comp the “exclusive remedy” for employees injured at work for good reason: It prevents them from filing more expensive lawsuits against employers. But there are exceptions, such as intentional harm. That’s what a prison guard argued when he was tased as part of training.

David Harris has worked for the Montana Department of Corrections (DOC) for 13 years as a guard at the state prison. He’s been a member of the Special Response Team (SRT), “an elite weapons and tactical response team whose members are extensively trained to respond to the prison’s most dangerous crises such as inmate riots, escapes and hostage situations.” Membership is voluntary.

In 2006, the state prison’s warden decided it would buy and use tasers manufactured by Taser International. The warden issued a policy that any employees who wanted to use a taser had to complete training, which included being tased for five seconds. The purpose: to instill in the trainees an understanding of the effects of the taser and encourage them to use the devices in a safe manner.

The warden said none of the training was intended to injure any of the trainees. Safety precautions would be used during the training to avoid injury. No employees were required to use tasers, but the training was mandatory for all SRT members.

Before guards took the training, all DOC prison wardens took it and experienced the five-second exposure. None were injured.

One month later, training was held for SRT members, according to standards set by Taser International. The risks of undergoing taser exposure were disclosed in a written consent form that Harris signed. None of the SRT members, including Harris, objected to being tased as part of the training.

The SRT commander was tased first. He wasn’t injured, and afterward he served as a spotter for the other trainees.

However, Harris claimed to have sustained injuries to his thoracic and lumbar spine from his five-second exposure. He received workers’ comp benefits.

Three years after the training, Harris filed a lawsuit against the State of Montana and the DOC, alleging he suffered an intentional injury by his fellow employee when he was tased during the 2006 training.

A court granted summary judgment to the DOC, throwing out Harris’ complaint.

Recently, the case was heard by the Montana Supreme Court.

Exception to ‘exclusive remedy’?

Montana law says intentional injury is caused by an “intentional and deliberate act that is specifically and actually intended to cause injury to the employee injured and there is actual knowledge that an injury is certain to occur.”

Harris argued although the DOC didn’t actually intend to injure him, he was intentionally subjected to the taser and they knew there was the possibility of serious injury.

The DOC said the purpose of the training and voluntary exposure was to educate and train the employees to safely use a taser. They said they didn’t know for sure Harris would be injured.

The Montana Supreme Court said Harris failed to provide any evidence that the intent was to harm rather than educate and train him. For that reason, the court agreed with the previous decision and threw out Harris’ lawsuit. Workers’ comp would remain his exclusive remedy for injuries from being tased during training.

Some notes about taser training:

• The most frequent side effects are neck, back and shoulder injuries. Many trainees fall and hit their heads, shoulders or arms. The severe muscle contraction caused by the shock can fracture neck and back vertebrae. Some trainees heal quickly. Others have suffered permanent damage. Some agencies have banned tasing employees as part of training.
• There are several police officer lawsuits pending against Taser International claiming they suffered serious injuries after being shocked during training.

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

(Harris v. State of Montana, Department of Corrections, Supreme Court of MT, 2013 MT 16, 1/29/13)

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Is testing positive for pot enough to disqualify an injured employee from receiving workers’ comp benefits?

Vincent Hogg worked at the Oklahoma County Juvenile Detention Center. He suffered an injury to his right shoulder and neck while subduing an unruly, combative juvenile.

The Worker’s Compensation Court (WCC) found Hogg sustained an injury at work and reported it in a timely fashion, four days later. So far, so good on the path to receive workers’ comp benefits.

Hogg was given a post-accident drug screen on the day he reported the injury. He also had a follow-up screening the next day. Both drug tests were positive for marijuana.

Hogg didn’t dispute the test results, but he denied smoking pot. He said he had been around others who were smoking marijuana.

The WCC found there was no evidence presented to show Hogg was high on the day he was injured, nor was there any evidence to show the marijuana in his system was the “major cause” of his injury.

But the WCC denied his workers’ comp benefits anyway. The reason: A newly created Oklahoma workers’ comp law.

Just what does new law say?

The comp judge’s decision was based on the fourth sentence in a paragraph of the revised workers’ comp law:

“For purposes of workers’ compensation, no employee who tests positive for the presence of … alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.”

Hogg appealed the WCC ruling, arguing the sentence in the new law shouldn’t be read in isolation.

In reviewing the case, the Supreme Court of Oklahoma noted that the first two sentences of the same paragraph in the comp law say:

“The following shall not constitute a compensable injury under the Workers’ Compensation Code: an injury which occurs when an employee’s use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident; the employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident.”

The Supreme Court noted that the trial court found there was no evidence presented to show that Hogg was high on the day of his injury, nor was there any evidence to show that marijuana in his system was the major cause of the injury.

For that reason, the Oklahoma Supreme Court reversed the lower court’s ruling and remanded the case back to the WCC for further hearings. In other words, Hogg is now eligible for workers’ comp.

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

(Hogg v. Oklahoma County Juvenile Bureau, Supreme Court of OK, No. 110890, 12/11/12)

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Otis Elevator Co. was hired to install six elevators in an addition to the Brookwood Women’s Medical Center in Brookwood, AL.

Elevators #4 and #5 shared a hoistway … two shafts next to each other occasionally separated by beams.

Elevator #4 developed a problem and a part was needed to repair it.

Two Otis employees, a mechanic and an apprentice, arrived at the construction site on Sept. 20, 2011. They had to wait for another Otis employee to deliver the replacement part. While they waited, they completed a written job hazard analysis.

The workers had stored their tools in elevator #4 overnight. To retrieve them, the apprentice moved car #4 to the bottom floor. He stood on top of the car to use the “dead man” switches there to lower it.

The mechanic told the apprentice to wait on top of elevator #4 until the replacement part arrived.

While waiting, the mechanic heard a strange noise. The mechanic called to the apprentice. When he didn’t get an answer, the mechanic ran up to the third floor and looked down the elevator #4 shaft. The apprentice was lying on top of the unit with a serious head wound. He was dead.

An OSHA inspector and police determined that the apprentice had climbed onto a railing on top of car #4 and looked into the shaft of adjoining elevator #5. At that moment, car #5 descended and struck him on the head, killing him.

Should’ve used lockout/tagout?

The inspector didn’t recommend a citation against Otis. But OSHA didn’t accept her recommendation and issued one serious violation of the General Duty Clause and a fine of $7,000.

The citation stated, “lockout tagout (LOTO) procedures were not utilized when servicing or maintenance was being performed at the top of an elevator car.”

Otis appealed to the Occupational Safety and Health Review Commission, and an administrative law judge heard the case.

The judge said OSHA must show the hazard was recognized by either the employer or the industry.

“Otis had no actual or constructive knowledge that the apprentice would go over the back corner of the elevator top and stand on the guardrail to peer down into the adjacent shaft,” the judge wrote. For that reason, the judge ruled OSHA failed to establish Otis knew a hazard existed.

An expert testified that the elevator industry is concerned about employees performing work being struck by adjacent elevators.

But in this case, the mechanic had told the apprentice to wait on the elevator roof until the replacement part arrived.

At the time of the incident, the apprentice wasn’t performing any work, the judge said. OSHA “has not established that the elevator industry recognizes a hazard to an employee from an adjacent elevator when the employee is merely … waiting on a replacement part.” So OSHA didn’t show that the industry recognized that to be a hazard.

OSHA also had to show a feasible means was available to eliminate or reduce the hazard. The agency suggested that employees lockout and tagout elevator controls when they’re servicing or performing maintenance on them.

But the judge said at the moment of the injury, there was no work being performed on either elevator, and there was no unexpected startup of either car. So OSHA failed to show use of LOTO was a feasible means to abate the hazard.

Given these two findings, the judge vacated the citation and fine against Otis. This turns out to be a case of unpreventable employee misconduct.

What do you think about the judge’s decision? Let us know in the comments below.

(Secretary of Labor v. Otis Elevator Co., OSHRC No. 12-0817, 11/26/12)

The post General duty clause violation or unpreventable employee misconduct? appeared first on Safety News Alert.

Christine Jones was an employee at St. Elizabeth Medical Center in Youngstown, Ohio.

On April 2, 2007, Billy Jack Fitzmorris, a federal prisoner, was brought to St. Elizabeth’s for treatment. He used a homemade knife to overpower and disarm a prison guard who accompanied him.

Fitzmorris had a gun from a guard and took six people hostage, including Jones.

According to Jones’ own testimony:

“The inmate grabbed my left wrist. I yanked away from him. Then he grabbed my right wrist and pulled it and banged it against a doorway and pressed it there — holding me. That’s when he brought the gun up and said, ‘I’ll f*****g kill both of you.’ … He kept saying over and over that he would kill us — at least 15 times.”

After holding the hostages for 25 minutes, Fitzmorris escaped but was eventually recaptured.

Jones suffered an injury to her wrist. She applied for workers’ comp benefits for the physical injury and for PTSD. Her doctor said the anxiety and constant state of hyper-vigilance Jones experienced after being taken hostage prevented her from working.

Initially, she was granted workers’ comp for the wrist injury but denied for PTSD. Jones appealed the PTSD denial. Her appeal resulted in benefits for both the wrist injury and the PTSD.

Her employer appealed the award of benefits for PTSD.

Sole cause of PTSD?

The case eventually wound its way to the Court of Appeals of Ohio.

Jones’ employer argued her doctor’s testimony failed to show her wrist injury was the sole cause of her PTSD. The company said if the injury didn’t directly cause the psychological injury, PTSD shouldn’t be covered under workers’ comp.

The appeals court said the testimony from her doctor showed that Jones’ physical injury was a direct cause of her PTSD, even if it wasn’t the only cause — she also suffered from the stress of being taken hostage. Previous Ohio Supreme Court rulings held that if a physical workplace injury led to PTSD, it should be covered by workers’ comp.

The appeals court said the injury didn’t have to be the only cause of PTSD. For that reason, the judges upheld the lower court ruling that Jones should get workers’ comp for both her physical injury and for PTSD.

Let’s relate this case to the Connecticut school shooting. There were several first responders and school personnel who had to face the horror of 20 dead children inside the school. However, those workers weren’t physically injured.

Under the guidance of the Ohio appeals court ruling in the Jones case, these workers would not received workers’ comp for PTSD. There is question whether the first responders and school personnel in the Newtown massacre can receive workers’ comp for PTSD. Lawmakers have introduced bills in the Connecticut legislature to address this.

Do you think workers should get workers’ comp for PTSD if they witness violent situations at work? Let us know what you think in the comments below.

(Jones v. Catholic Healthcare Partners, Court of Appeals of Ohio, No. 11 MA23, 12/31/12)

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Ricardo Moyera suffered injuries when a forklift ran over his right foot at Quality Pork International (QPI) in Nebraska.

The forklift broke several bones in the top of his foot.

Moyera was placed on light duty until he reached maximum medical recovery.

Moyera continued to suffer pain. A rehabilitation consultant concluded he didn’t have transferable skills that would qualify him for sedentary jobs in the Omaha job market. Because of his permanent restrictions — a 20% whole body impairment — and his inability to speak English, she concluded he wasn’t employable and he experienced a 100% permanent loss of earning capacity.

When it became apparent he would continue to have some impairment — his foot would swell if he had to stand on it for too long — QPI’s personnel manager audited Moyera’s employment files and determined he didn’t have proper immigration documents. In fact, at QPI, Moyera had been known by another name: David Gutierrez.

QPI fired Moyera after he couldn’t produce the required paperwork.

At a hearing, a judge awarded Moyera future medical care benefits for treatment of his injury. QPI appealed, but a review panel agreed with the judge.

Recently, the case went to the Nebraska Supreme Court.

Temporary vs. permanent benefits

In a previous case, a Nebraska court had ruled that an illegal alien was able to collect temporary total disability benefits through workers’ comp.

But QPI said Moyera’s case was different because he was seeking permanent disability benefits. The company said temporary benefits are limited to an employee’s healing period.

QPI said benefits for permanent loss of earning power should be barred because Moyera couldn’t legally get a job in the U.S. because he was an undocumented worker. Temporary benefits focus on medical costs. Permanent benefits are also for wage replacement.

Interesting argument, but as has been happening from state to state, the Nebraska Supreme Court ruled an undocumented worker is eligible for workers’ comp. Among the observations made by the court in its ruling:

• “Even if undocumented employees cannot legally work in the United States, they could have worked elsewhere but for their work-related injury.”
• “Excluding undocumented workers from receiving disability benefits creates a financial incentive for employers to continue hiring them.”
• “Allowing an employer to escape liability for the work-related injuries that its undocumented employees sustain gives the employer an unfair advantage relative to competitors who follow the law.”
• “Employers bear the costs of their employees’ work-related injuries because they are in the best position to avoid the risk of loss by improving workplace safety. We agree that public policy weighs against allowing employers to avoid the costs of their workplace hazards.”

So Nebraska joins other states where the highest courts have ruled undocumented workers aren’t an exception when it comes to workers’ comp.

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

(Moyera v. Quality Pork International, Nebraska Supreme Court, No. S-12-208, 1/4/13)

The post Workers’ comp for undocumented employee: Does injury status matter? appeared first on Safety News Alert.

Here are six proposed regulations that will impact companies this year if OSHA holds to its schedule:

• Electric Power Transmission and Distribution; Electrical Protective Equipment (March 2013): The construction industry standard addressing the safety of workers during the construction of electric power transmission and distribution lines is nearly 40 years old. OSHA has developed a revision of this standard.
• Consensus Standard Update — Signage (April 2013): OSHA would update references to consensus standards involving certain types of safety signage but would grandfather signs conforming to the current standard.
• Cooperative Agreements (April 2013): OSHA proposes to revise its regulations for the federally funded On-site Consultation Program to allow inspections resulting from referrals at sites undergoing Consultation visits and at sites that have been awarded Safety and Health Achievement Recognition Program (SHARP) status.
• Vertical Tandem Lifts (May 2013): In 2011, a United States Court of Appeals remanded two provisions of the VTL final rule: the inspection requirement with respect to ship-to-shore VTLs and the total ban on platform container VTLs. The court said there was insufficient evidence that complying with those two provisions was technologically feasible. OSHA is reopening the record to assess the technological feasibility of those two provisions.
• Confined Spaces in Construction (July 2013): In 1993, OSHA issued a rule to protect employees in general industry who enter confined spaces. The standard wasn’t extended to cover employees in construction because of unique characteristics of construction work sites. Discussions with the United Steel Workers of America that led to a settlement agreement regarding the general industry standard: OSHA agreed to issue a proposed rule to protect construction workers in confined spaces.
• Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention) (August 2013): New technologies and procedures have become available to protect employees from these hazards. OSHA has been working to update these rules to reflect current technology.

Additional proposals that could become final rules this year involve three standards for whistleblower enforcement and one for how employers are classified for recordkeeping requirements.

More proposed regulations that will require more time to be completed but are in the pipelines include:

• Injury and Illness Prevention Program: OSHA is developing a rule requiring employers to implement an I2P2. It involves planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. OSHA predicts it will have a Notice of Proposed Rulemaking (NPRM) ready in December 2013.
• Review/Lookback of OSHA Chemical Standards: The majority of OSHA’s Permissible Exposure Limits (PELs) were adopted in 1971, and only a few have been successfully updated since then. OSHA is developing a Request for Information (RFI) seeking input from the public to help OSHA identify effective ways to address occupational exposure to chemicals. OSHA expects to issue the RFI in May 2013.
• Silica: The current OSHA permissible exposure limit (PEL) for silica for general industry is based on a formula proposed by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1968 (PEL=10mg/cubic meter/(% silica + 2), as respirable dust). The current PEL for construction and shipyards (derived from ACGIH’s 1970 Threshold Limit Value) is based on particle counting technology, which is considered obsolete. NIOSH and ACGIH recommend 50µg/m3 and 25µg/m3 exposure limits, respectively, for respirable crystalline silica. OSHA expects to issue an NPRM in May 2013.
• Beryllium: Similar to the silica proposal, this standard would set a PEL for beryllium. An NPRM is scheduled for July 2013.
• Bloodborne Pathogens: OSHA is reviewing this standard as required by the Regulatory Flexibility Act. The review will consider the continued need for the rule; whether the rule overlaps, duplicates, or conflicts with other federal, state or local regulations; and the degree to which technology, economic conditions, or other factors may have changed since the rule was evaluated. OSHA expects to end this review in May 2013.
• Improve tracking of injuries and illnesses: OSHA is proposing changes to its reporting system for occupational injuries and illnesses. An updated and modernized, electronic reporting system would enable a more efficient and timely collection of data and would improve the accuracy and availability of the relevant records and statistics. OSHA has scheduled an NPRM for May 2013.

Which new or revised standards do you think will have the most impact on businesses? Let us know in the comments below.

The post Are we about to see a flood of new OSHA rules? appeared first on Safety News Alert.

In no particular order, here are five top workplace safety areas to keep an eye on in the coming year:

1. New OSHA regulations

Revisions to two existing regulations are pretty much ready to go: updates on the electrical power transmission and distribution regulations, and an update of the walking and working surfaces regulations. The latter still needs final review by the Office of Management and Budget.

Then there are the revisions to the silica standard, including a stricter permissible exposure limit. This update has been stuck in the governmental approval process for years now. Even so, another barrier has popped up. This fall, OSHA administrator David Michaels said the update could be delayed again because regulators need to figure out how to incorporate the new hydraulic fracturing industry, commonly known as fracking, into the revised silica rules.

Probably not in 2013, but later in President Obama’s second term, more new and revised OSHA regulations could surface. Among them: combustible dust; infectious diseases; backup alarms on construction vehicles; and a high priority for Michaels, Injury and Illness Prevention Programs.

2. OSHA enforcement

When it comes to issuing citations, OSHA has to work within the framework set by Congress.

However, there is some wiggle room.

Through administrative efforts, OSHA has managed in the last four years to almost double the cost of the average serious violation to $3,000.

Also, the number of companies facing total fines above $100,000 has gone up. In 2010, only 164 companies were issued six-figure fines. In 2012, that number jumped to 217, a 32% increase.

One way OSHA is increasing the amounts paid by companies: classifying citations as “willful,” which have a $70,000 maximum, compared to “serious” citations, which have a $7,000 max.

3. Workers’ comp reform

All eyes are on California when it comes to this one.

The state is trying what might seem impossible: It wants to increase payments to injured workers while keeping down the costs to companies and insurers.

The changes in California’s workers comp system will go into effect over the course of the next 12 months. Among the changes:

• a new system for resolving medical treatment and billing disputes
• streamlined administration, and
• reduced litigation costs.

Lawmakers who enacted this measure in 2012 estimate it will save employers $1.7 billion. Others doubt the savings will be that large. Some say it will be an accomplishment if the rate of increase in workers’ comp rates slows down.

4. More focus on injury and fatality rates

There’s one reason for additional focus on this: Injury and fatality rates are both up across the nation.

How do you make those rates go back down, as they were just a few years ago?

OSHA will say stricter enforcement is the key.

Industry groups will push for more help from the safety agency and less focus on issuing fines.

It’s not a new debate, of course. The rhetoric may get louder now that statistics show the U.S. isn’t consistently reducing the numbers of workers injured and killed on the job each year.

5. Less focus on injury rates

How can you have more focus and less focus on injury rates?

OK, we guess technically, you can’t.

But safety pros are realizing that the best safety programs can’t rely solely on measuring injury rates.

There have to be other measures of more proactive parts of safety programs, sometimes referred to as leading indicators. This would be in addition to measuring lagging indicators, such as injury rates and workers’ comp costs (which of course are also based on injury rates).

Examples of leading safety indicators: counting and investigating near misses; tallying number of hours of employee safety training; and getting workers to report more potential hazards.

What are you concentrating on in your safety program for 2013? Let us know in the comments below.

The post Top 5: What’s ahead for workplace safety in 2013 appeared first on Safety News Alert.

Here are the top 10 safety stories from SNA for 2012:

1. Mike Rowe: Safety first is a load of unmitigated nonsense. A statement by the Dirty Jobs host elicited lots of comments from SNA readers.
2. OSHA’s revised hazcom standard. This standard is in the process of being phased in over time.
3. Worker is fired for swearing at his boss: Will he continue to get comp? If you fire an employee for cause, do you have to continue workers’ comp payments?
4. OSHA tells its inspectors to look out for safety incentive programs. OSHA’s theory: Some safety incentive programs encourage employees to hide injuries.
5. Should he get workers’ comp for snake bite? The question in many workers’ comp cases comes down to the same point: Was the injury work-related?
6. Obama vs. Romney: What would happen to OSHA? We know who will be president for the next four years. But Washington is going to have to deal with the fiscal cliff before we know for sure how OSHA will impact companies in the coming years.
7. Company says he’s too fat to work safely, applicant sues. The rise of obesity in the U.S. impacts workplace safety.
8. Fell down elevator shaft after drinking at work: Will he get comp? How does employee alcohol use impact workers’ comp?
9. Is injured stripper employee or contractor? Workers’ comp hangs in balance. Another common question in workers’ comp cases is whether the injured person is an employee of the company.
10. Doctor said take this pill: So why was he fired after a drug test? This case asks the question: Are zero-tolerance drug policies always a good idea?

And in case you missed our post last week, we also posted the Top 10 OSHA enforcement stories of 2012.

All of us at Safety News Alert hope you have a safe and healthy 2013.

The post Top 10 Safety News Alert stories of 2012 appeared first on Safety News Alert.

The stories are ranked by your clicks. Some involve individual fines, some have to do with trends.

Here are Safety News Alert’s Top 10 of 2012 stories about OSHA enforcement:

1. OSHA tells its inspectors to look out for safety incentive programs. Reason: Some traditional safety incentive programs reward a lack of injuries. That could cause employees or managers to under-report injuries.
2. New ruling: How far back can OSHA look for recordkeeping violations? Short answer: Not as far as the agency would like to.
3. Newspaper photo of worker on roof leads to OSHA fine. Turns out an OSHA inspector doesn’t have to witness the violation in person.
4. Company to pay $400K to OSHA in settlement over injuries. OSHA went to court in this case.
5. What will OSHA fines be like in Obama’s second four years? One way to predict the future is to take a look at the past. The records of previous presidents regarding OSHA could be predictive of the next four years.
6. Worker crushed to death in machine: $702K OSHA fine. OSHA cited the company on a per-employee basis.
7. OSHA’s top 10 violations in 2012. OSHA conducted almost 41,000 violations in fiscal year 2012. Here are the top 10 types of violations.
8. Company that bashed OSHA on YouTube ordered to pay $42K for contempt. It all started when this company refused to let an OSHA inspector into its facility.
9. Worker killed by lightning strike: OSHA fines company. OSHA says the company could have done more to protect its employee.
10. Attorney: Why companies should contest more willful OSHA violations. Part of the reason has to do with a 2012 court decision.

We’ll have more year-in-review posts in the coming weeks.

The post Top 10 of 2012: OSHA fines and enforcement appeared first on Safety News Alert.

Those who have followed along the last four years won’t be surprised to find that the total amount of OSHA fines levied during the period under administrator David Michaels has gone up.

But raw numbers don’t always tell the entire story. In this infographic, the annual fines imposed by OSHA are adjusted for inflation. Total fines are still the highest under the Obama administration, but one Republican president also had a spike in OSHA penalties.

What may come as more of a surprise is that President Obama has a lot of catching up to do if he wants to reach the number of OSHA regulations enacted by a conservative president … Ronald Reagan.

And as the so-called fiscal cliff looms over the Obama administration and Congress, complete with automatic spending cuts if a compromise isn’t reached, the following graphic notes that spending to fund OSHA has indeed gone up in the last four years.

But over time, spending and fines are actually not that far apart when you lump all presidents into two groups by their political parties:

These infographics were developed by complianceandsafety.com.

What’s your take-away from this historic look at OSHA? What do you see happening to OSHA in the next four years? Let us know in the comments below.

The post What will OSHA be like in Obama’s second four years? appeared first on Safety News Alert.

A recap of this story we told you about three years ago: When Sandra Herold’s pet chimpanzee escaped her house on Feb. 16, 2009, Herold called an employee, Charla Nash, and asked her to come to the house and help recapture the animal.

Nash arrived to help, and the chimp brutally attacked her, ripping off her hands and mauling her face.

A responding police officer was also attacked by the chimp. The officer shot and killed the animal.

Nash suffers from blindness and loss of both hands due to the attack. She also had to undergo a full face transplant.

Herold died in 2010, unrelated to the chimp attack. Nash sued Herold’s estate seeking $50 million in damages for negligence, strict liability and recklessness.

Herold’s estate claimed workers’ comp should be the exclusive remedy because the chimp was an integral part of Herold’s tow-truck business.

Really?

Yep. The chimp’s picture was on a wrecker, he was often seen riding in the truck and he regularly made promotional appearances.

And Herold’s estate says her home was her business office, and Nash’s regular duties included cleaning the chimp’s play area and picking up his supplies.

Settled out of court

It certainly would have been interesting to see how a court ruled in this case. But we’ll never find that out.

The two sides have reached a settlement. Herold’s estate will pay Nash $4 million.

The fact that Herold’s estate settled out of court and agreed to a multi-million dollar payout says one thing: They weren’t convinced they could win in court.

Is there take-home from this case for other businesses? It’d be reasonable to think there isn’t because, let’s face it, not many business owners keep pet chimps in their homes.

But if you remove the chimp part of the story, there are a couple of things for business owners to consider:

• Be careful when asking employees for assistance with something at an owner’s or executive’s home. If the employee is injured and can draw a reasonable link to work, the company might be on the hook for workers’ comp.
• Even if a court found this case to be work-related, Nash could still recover injuries. Why? Because this chimp had a known history of violence. Herold put her employee in a situation with a known, serious hazard. That could trigger an exceptions to the workers’ comp exclusive remedy: negligence on the part of the business.

One more note on this case: It triggered another workers’ comp filing.

Frank Chiafari was the officer who responded to the scene and shot the chimp. The chimp opened a door to his police car and came at him. That’s when Chiafari shot him.

Chiafari also had to deal with the aftermath of the chimp attack on Nash. He said she was so badly mauled that at first he couldn’t tell if the victim was a man or woman.

The officer applied for workers’ comp benefits for post-traumatic stress disorder. He was denied benefits. Connecticut law allows a police officer to receive workers’ comp for PTSD after facing serious injury or deadly force from another person. Chiafari was attacked by an animal, and that’s not covered.

The news wasn’t all bad for Chiafari. His employer, the City of Stamford, agreed to cover his out-of-pocket medical expenses. And the Connecticut state legislature passed a bill to add violent attacks by an animal to the workers’ comp law. The bill was drafted so it wouldn’t include instances involving rabid smaller animals such as raccoons or when an officer has to shoot a deer that’s been badly injured in a car crash.

Back to Nash’s case: If it had gone to trial, do you think she should have received workers’ comp or should she have received the $50 million she sought in a negligence suit? Let us know what you think in the comments below.

The post Chimp attack won’t be covered by workers’ comp appeared first on Safety News Alert.

Ashley Schutz worked for O’Brien Constructors in Oregon as an office manager. She reported to several project managers.

One of them, Keeley O’Brien, the son of the company’s owner, invited Schutz for drinks after work.

She declined four or five times, but finally decided to go because she believed getting along with her boss and being a “team player” was important to advancing at the company.

Schutz drank at least four 24-ounce beers. Her boss paid for her drinks.

On her way home, she drove the wrong direction onto a highway and collided head-on with another car.

Schutz suffered severe injuries, including quadriplegia. Her blood-alcohol level was .24 when she was admitted to the hospital.

She filed a workers’ comp claim. O’Brien Constructors denied the claim, and Schutz appealed. An administrative law judge upheld the denial, as did the Workers’ Compensation Board.

The most recent development in this case: Schutz went to an Oregon appeals court which has handed down its decision.

‘Motivation to participate?’

The WC Board determined that, because O’Brien hadn’t pressured or encouraged Schutz to drink alcohol, becoming intoxicated wasn’t a risk that resulted from the nature of her work as an office manager or a risk she was exposed to in her work environment.

Schutz said the real question was whether she was motivated to drink because of work-related reasons. If she was, Schutz says she should receive comp benefits.

The court rejected that line of thought. Its decision says:

“Even if [Schutz's] injuries would not be excluded from compensability because her primary motive to attend the after-work event was work-related, it does not follow that her intoxication and the injuries that resulted from it arose out of her employment.”

For that reason, the appeals court agreed with the WC Board that Schutz shouldn’t receive workers’ comp benefits for her injuries (opinion PDF).

What do you think about the decision in this case? Let us know in the comments below.

(Schutz v. O’Brien Constructors, Court of Appeals of OR, No. A148840, 11/15/12)

The post Can she get workers’ comp for injuries from drunk driving crash? appeared first on Safety News Alert.

In May, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious.

The fines stemmed from an October 1993 incident in which a Dayton Tire employee in Oklahoma City died from injuries he suffered when a machine activated unexpectedly.

What had been $1.975 million in fines regarding lockout/tagout dropped to $197,500, a 90% reduction.

The U.S. Court of Appeals, DC Circuit, had ordered the commission to reconsider the gravity of the fines. Reason: The court said Dayton Tire made some effort to comply with the OSHA LO/TO regulations, so the violations weren’t willful.

OSHA fines are categorized as willful when the company committed the violation with either an intentional disregard of or plain indifference to OSHA regulations.

“It takes a lot to be plainly indifferent,” the DC Circuit Court wrote in its opinion.

Now, in a blog post, attorney Shannon Young of Harmon & Davies writes this decision “gives employers an even stronger basis from which to contest willful OSHA citations.”

“What this means is that as long as an employer is acting in good faith to comply with OSHA regulations,” Young writes, “even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a willful violation.”

The difference in financial penalties for companies can be huge. The maximum allowed for a willful violation is $70,000. The maximum for a serious citation is $7,000.

And there’s anecdotal evidence the district court’s ruling may be affecting OSHRC decisions already.

In a case involving trenching, an OSHRC administrative law judge ruled a willful citation issued to a construction company should be reduced to a serious violation because the supervisor at the trench site was “inexperienced, uninformed and confused about how to protect employees.”

“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”

In other words, he wasn’t indifferent.

Legislators, seeking to give OSHA more teeth, have re-introduced, every two years, bills that would increase the maximum allowable fines for safety and health violations.

However, given these rulings based on definitions in the Occupational Safety and Health Act, perhaps OSHA reform needs to focus on the definitions of certain types of violations.

What do you think? Let us know in the comments below.

The post Attorney: Why companies should fight more OSHA citations appeared first on Safety News Alert.

A Delaware employer tried three arguments to stop workers’ comp payments to a former employee who was deported.

Saul Melgar Ramirez was injured on the job in January 2011. He fell down six steps landing on his back, suffering back fractures and a herniated disk.

Before he could complete treatment, he was deported to Honduras and is now “excluded” from the U.S. A doctor in Honduras confirmed Ramirez still needed treatment for the back conditions after he was deported.

Delaware’s Industrial Accident Board (IAB) awarded comp benefits to Ramirez and ruled they should continue even after he was deported.

His former employer, Delaware Valley Field Services (DVFS), appealed the IAB decision. Delaware’s Superior Court took a look at this “case of first impression” for the state.

How does his status affect benefits?

DVFS made these three arguments that Ramirez shouldn’t continue to receive comp benefits:

1. Because of his undocumented immigrant status, there can’t be a valid, enforceable employment contract between Ramirez and DVFS.
2. Ramirez’s deportation and exclusion from the U.S. is the same as being incarcerated. Delaware law says workers’ comp benefits may be suspended for as long as an employee is incarcerated.
3. Ramirez “refused” to submit to an employer medical evaluation.

The court addressed each argument.

1. The court said there’s nothing in Delaware law that would break an employment contract, written or verbal, between a worker and employer. The definition of employee in state law says nothing about excluding illegal immigrants. Also, the federal Immigration Reform and Control Act doesn’t specifically bar undocumented immigrants from receiving workers’ comp benefits, according to the Delaware court.
2. Ramirez isn’t in jail in Honduras, the court noted, and deportation and exclusion from the U.S. isn’t the same as incarceration.
3. The court said Ramirez hasn’t refused to submit to medical evaluation. He saw two doctors, one in the U.S. before he left, and one in Honduras. Both said he was totally disabled because of his back injuries.

For those reasons, the Delaware court ruled there was no reason to terminate Ramirez’s workers’ comp benefits.

Note: This is the way most state courts are deciding workers’ comp cases involving illegal immigrants. As part of its decision, the Delaware court quoted a similar case from a Washington D.C. court, in which a judge wrote,  “As many courts have concluded, denying compensation coverage to undocumented aliens creates powerful incentives for employers to hire such individuals.”

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

(Delaware Valley Field Services v. Saul Melgar Ramirez, DE Superior Court, No. 12A-01-007-JOH, 9/13/12)

The post Should undocumented immigrants be eligible for workers’ comp? Another state weighs in appeared first on Safety News Alert.

Brenda Miller worked as a certified nurse assistant for Christus St. Patrick Hospital (CSPH) in Louisiana. She injured her back on June 29, 2010.

CSPH never disputed that she was injured.

When a doctor said she could do so, Miller returned to work on light duty.

According to CSPH, Miller was fired on Oct. 14, 2010, because she made threatening statements about her supervisor on Facebook while she was at work.

Miller doesn’t deny that she posted on Facebook while at work, but she says her post wasn’t directed at her supervisor. CSPH fired her for violating its standards of employee behavior.

When Miller filed for continuation of her workers’ comp benefits, CSPH sought to deny them on the grounds that she was fired for cause.

A workers’ comp judge (WCJ) ruled in Miller’s favor. CSPH took its case to a state appeals court.

Did WCJ get it right?

In reviewing the case, the appeals court said previous case law had established the following:

• Workers’ comp benefits end when an employee refuses employment
• If a company fired a worker for cause unrelated to an injury, workers’ comp benefits can be terminated, and
• If a company fired an employee for reasons other than cause, workers’ comp benefits don’t end because allowing that might encourage some employers to fire workers to bring an end to comp benefits.

Although CSPH said it fired Miller for cause, Miller disputed part of the hospital’s reason for firing her.

The appeals court called the circumstances involving Miller’s firing “obscure or murky.” It said the only job of the WCJ was to decide whether Miller met the burden of proof to get workers’ comp benefits. It’s not up to a WCJ to determine whether a firing for cause was justified.

The appeals court said Miller’s workers’ comp benefits should continue because it wasn’t clear if her firing was justifiably for cause.

Notes: Miller lost one other part of her case. Her physical therapy was being provided at CSPH. She said, given the circumstances, that was a conflict of interest and she should be allowed to choose her own physical therapist. The court denied her request. However, Miller was awarded $5,000 in attorney fees for work performed on her appeal.

(Miller v. Christus St. Patrick Hospital, Court of Appeals of Louisiana, 3rd Circuit, No. 12-370, 10/24/12)

The post Does Facebook post spell end of workers’ comp benefits? appeared first on Safety News Alert.

Jack Rabin was a professor at Penn State. He had been working closely with a doctoral student who was preparing his dissertation. The two would meet regularly at a restaurant to discuss the doctoral dissertation because they were on campus at different times: One taught during the day and the other taught at night.

During one restaurant meeting, the two men went to the salad bar. The doctoral student heard a loud crash and found Rabin lying on the floor, groaning. Rabin said he had caught his foot on something and fell. He felt pain in his upper left chest, shoulder and arm.

Rabin suffered a shoulder fracture and dislocation. A doctor performed a “shoulder closed relocation.” Rabin was discharged from the hospital the next day.

Three days later, he was back at another hospital, suffering from shoulder pain and difficulty walking. Rabin’s doctor said the patient was in cardiac and respiratory distress.

The next month, while still hospitalized, Rabin died. His doctor wrote in his hospital summary, “The patient expired from multiple medical problems stemming from his unfortunate left upper extremity fracture.”

Rabin’s widow applied for workers’ comp death benefits. A workers’ comp judge awarded the benefits, but Penn State appealed. The workers’ comp board affirmed the judge’s opinion, and the university took its case to a state court.

Was he ‘engaged in business?’

In its appeal, Penn State argued Rabin’s widow failed to prove her husband sustained his injuries while in the course of his employment. The university argued Rabin was on a lunch break when he fell and that he wasn’t “engaged in the furtherance of his employer’s business” at the time.

The state court credited testimony from the doctoral student who said he and Rabin had met several times over a meal to discuss his dissertation. The student said that, had it not been for Rabin’s fall, the two of them would have continued their discussion after they got their food on the day of Rabin’s injury.

The state court noted that previous case law established that “where the injury occurred during an inconsequential or innocent departure from work within the regular working hours,” the employee was engaged in business.

Rabin’s “trip to the salad bar cannot logically be construed as anything more than an inconsequential departure from his work as a professor, in which he was engaged at the time,” the court wrote.

Penn State also argued Rabin’s widow failed to prove his fall at the salad bar substantially contributed to his death. The professor had several preexisting conditions which were triggered by the fall.

But the court credited testimony by Rabin’s doctor who stated his multiple medical problems were exacerbated by his fracture and that caused him to “go into complete body system failure.”

The court also rejected this line of argument.

For those reasons, the court rejected Penn State’s argument that Rabin wasn’t engaged in business when he was injured. The court affirmed the workers’ comp board decision to give his widow workers’ comp death benefits.

What do you think about this decision? Let us know in the comments below.

(Penn State v. Workers’ Compensation Appeal Board, Commonwealth court of PA, No. 2224 C.D. 2011, 8/15/12)

The post Was meeting at restaurant a working lunch? Workers’ comp depends on it appeared first on Safety News Alert.

A bus driver brought brownies to work and offered them to other drivers. Three ate brownies, but they didn’t know they were laced with pot. The three drivers were told to undergo drug counseling after the incident, but two of them refused.

San Diego Metropolitan Transit System (MTS) bus driver Ku’uipoaloha Lawler is accused of providing the pot brownies to the other drivers. MTS fired him, and San Diego police have turned over results of their investigation to the District Attorney for consideration.

There was more controversy about what should happen to the three drivers who unknowingly consumed pot in the brownies.

On the day Lawler brought the brownies to work, all three of the drivers who ate them went on their regular routes but pulled over when they realized what was happening. MTS sent replacement drivers to take over.

The three drivers were required to provide urine samples and were placed on paid leave. MTS said they had to submit to substance-abuse counseling before returning to work in a capacity other than driving a bus.

One driver agreed to the conditions, but two objected and refused to go to the counseling.

Mark Hall, one of the two drivers who objected to the MTS conditions, took his case public, to the San Diego Union-Tribune.

It certainly didn’t seem fair that Hall and the two other drivers had to undergo drug counseling when they didn’t know they were eating pot brownies.

Hall says people even asked Lawler whether the brownies had pot in them, and he denied it.

Federal regulations kick in

But there was a problem: Federal Transit Administration safety regulations require bus drivers to undergo substance-abuse counseling when they have a positive drug test.

MTS said it wanted to treat the drivers fairly, but it had to wait for a federal waiver.

About a month after the incident, the feds finally issued the waiver. The three drivers didn’t have to undergo counseling, and they were allowed to return to bus driving.

Although the MTS employees needed a waiver from federal regulations to go back to driving, they wouldn’t have faced criminal DUI charges if they were pulled over. Criminal law has an exception for involuntary intoxication when the affected person didn’t know they were ingesting a mind-altering substance.

Do you think the system worked as it should have in this case, or should it have been easier for the three bus drivers to go back to their jobs? Let us know what you think in the comments below.

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Antonio Parvool traveled to Hawaii for Tony’s Food Service of California to furnish catering services to movie production crews.

While there, he stayed at a hotel provided by his employer.

One day while he wasn’t working, he dove head-first into the shallow part of the hotel’s pool.

He suffered injuries to his neck, upper extremities, lower extremities and digestive system.

Parvool’s employer wanted to deny him workers’ comp coverage. The employer pointed out he wasn’t on the clock when he was injured.

A California workers’ comp judge ruled Parvool’s injury arose out of voluntary participation of an off-duty recreational activity and wasn’t part of his work-related duties.

An exception to the rule

But Parvool’s attorney argued this was a case of the “commercial traveler” exception.

A commercial traveler is someone on a trip for business purposes, such as a conference or special project. When an employee is a commercial traveler, it’s usually considered that he is always on the clock.

The California Worker’s Compensation Appeals Board reversed the judge’s opinion. It agreed with Parvool’s attorney that this was a commercial traveler case and that it would be unreasonable to expect an employee to remain in a hotel room while far away from home on business travel.

The commercial traveler is just one type of exception to the usual workers’ comp coming and going rule, which says an employee isn’t covered for injuries suffered on the way to or from work. Other exceptions include:

• if a worker has to use his personal vehicle to travel to multiple work sites
• if a worker is asked to perform “a special mission” for the employer while on his way to or from work, and
• when travel is part of their job, such as a delivery truck driver.

What do you think of the appeals board’s decision? Let us know in the comments below.

(Antonio Parvool v. Tony’s Food Services, CA W.C.A.B.)

The post Is off-duty swimming pool injury eligible for workers’ comp? appeared first on Safety News Alert.

Was a widow able to show that work stress triggered her husband’s fatal heart attack? That’s what she needed to prove to get workers’ comp death benefits.

The employee was a receiver at a Waldbaum’s grocery store.

However, he was assigned to be the acting store manager during the afternoon and evening shift on Super Bowl Sunday, 2007.

Being a fill-in store manager on one of the busiest days of the year is stressful enough. On top of that, an irate customer put up a fuss that the fill-in manager had to deal with.

At about 7 p.m. that day, the employee collapsed to the floor of the store and died soon after of a heart attack.

His widow applied for workers’ comp death benefits. A WC law judge ruled the employee’s death was not causally related to his employment.

The WC board reversed that decision and awarded the benefits. Waldbaum’s took the case to a state appeals court.

Is timing a factor?

Waldbaum’s noted that the confrontation with the angry customer occurred hours before the employee’s death.

An expert witness for the store argued significant work-related stress or aggravation had to occur immediately before the employee’s collapse for it to be considered causally related to work. Since the incident happened hours before the heart attack, the store’s expert testified that the comp claim should be thrown out.

An expert for the widow testified that the employee’s fatal heart attack was triggered by the stress resulting from the responsibility of running the entire store on Super Bowl Sunday as well as the argument with the customer. Therefore, there was a causal connection to work.

The appeals court upheld the WC board’s ruling that the widow should receive death benefits. The court noted the board relied on medical evidence and testimony to reach its decision and that the employer’s expert admitted it is possible for an event that didn’t occur right before a heart attack to be a trigger.

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

(Roberts v. Waldbaum’s, Supreme Court, Appellate Div., New York, No. 513795, 9/27/12)

The post Should widow get comp for husband’s fatal heart attack at work? appeared first on Safety News Alert.

In October 2009, Danny Auger of Orillia, Ontario, Canada, was working alone on a house renovation when his sleeve got caught in a miter saw. His left arm was almost sawed off, left attached by just 0.2 inches of skin. Auger had to carry his own arm while he went from house to house looking for help.

His arm was reattached, but he lost three inches of it. He has only partial use of the arm with no fine motor skills.

And there’s the pain from nerve damage, which is chronic.

Auger didn’t want to use strong painkillers after having his arm reattached because he got addicted to Oxycontin when he had knee surgery ten years earlier.

But he didn’t have any choice when he was released from the hospital. He was given prescriptions for Oxycontin, Percocet and Ganapehin for pain, which were covered by workers’ comp.

Six months after returning home he stopped using all the prescription painkillers, gradually reducing the dosage.

However, he replaced them with medical marijuana, for which he had a license from the Canadian government that was supported by a doctor.

Auger wants his medical marijuana covered through workers’ comp. So far, the Workplace Safety & Insurance Board (WSIB) has denied his request.

It’s not cheap

Auger’s license is for 20 grams a day, but he only uses 28 grams a week. Why? The cost.

His workers’ comp benefits pay him $882 every two weeks. The 28 grams of marijuana costs up to $300 a week.

In other words, it uses one-third of his income. That’s why he wants the workers’ comp coverage for it.

No word on how this would compare to the cost of prescription painkillers for Auger.

The WSIB has a policy that it won’t reimburse the costs of obtaining medical marijuana.

However, the tribunal that hears appeals from WSIB cases has often ordered the board to pay because patients have received official access. While that would seem to set a precedent, it hasn’t. Each case involving workers’ comp coverage for medical marijuana is heard separately and not based on previous decisions.

A paralegal working with Auger expects him to get a favorable decision from the appeals board.

Do you think medical marijuana should be available as a pain management alternative and covered by workers’ comp? You can give your opinion in the comments box below.

The post Should workers’ comp pay for medical marijuana? appeared first on Safety News Alert.

You’ll find the first clue on the differences between the two parties on the role OSHA would take by noticing which section of each platform mentions the federal safety agency.

For the Republicans, OSHA comes under “Regulatory Reform: The Key to Economic Growth.”

It’s under “Standing Up for Workers” for the Democrats.

“Regulations must be drafted and implemented to balance legitimate public safety or consumer protection goals and job creation,” the GOP document states. “Constructive regulation should be a helpful guide, not a punitive threat.”

OSHA’s current regulatory agenda is “overreaching,” according to the party of Mitt Romney, and Republicans in the White House and Congress would “rein in” the agency.

Not only would the Republicans rein in OSHA, they would create “a moratorium on the development of any new major and costly regulations until a Republican Administration reviews existing rules.”

Democrats say that, under their watch, OSHA would “continue to adopt and enforce comprehensive safety standards.”

What new OSHA rules might be enacted in a second term for President Obama?  A new permissible exposure level for silica has been in the works for years. OSHA administrator David Michaels says requiring companies to have their own Injury and Illness Prevention Programs is a top priority for him.

The Democratic party platform also calls for a “fight against the exploitative practice of employers fraudulently misclassifying workers as independent contractors.” One reason some businesses do that is to limit their workers’ compensation insurance premiums, which creates an unfair business advantage when those companies bid for work against employers that do have the required amount of comp coverage.

They actually agree on something?

Yes, the Rs and Ds do actually share one statement pertaining to OSHA in their platforms.

According to the Republicans, rules should “have a sound basis in science.”

The Democrats agree, noting, “regulations should be based on sound science.”

What do you think of the parties’ platform statements regarding OSHA and business regulations? What is the best thing the federal government can do for businesses and workers? Let us know what you think in the comments below.

The post Obama vs. Romney: What would happen to OSHA? appeared first on Safety News Alert.