Workplace Wellness and On-site Chiropractic Services: Is There a Chiropractor in the House?

Robin Kobayashi 65x57By Robin E. Kobayashi, J.D., LexisNexis Legal & Professional Operations


Musculoskeletal disorders (MSDs), including most commonly sprains and strains, accounted for a whopping 33 percent of all workplace injury and illness cases as well as one-third of all the days-away-from-work cases in 2013 according to the U.S. Dept. of Labor, Bureau of Labor Statistics. What’s more, workers who sustained an MSD injury needed an average of 11 days to recuperate before they could return to work compared to 8 days for all other types of injury cases. Nursing assistants, laborers, and freight, stock, and material movers had the highest rates of MSD injuries.


Given the high rate of MSD injuries in the workplace and the associated high costs of treatment, studies from 2011 and 2012 examined the use of on-site chiropractic services and found that these services contributed to lowered overall costs. Supporting the value of on-site chiropractic services is a 2014 study published in the Journal of Occupational and Environmental Medicine that compared the impact of on-site and off-site chiropractic care on health care utilization, specifically, radiological procedures and clinical care.



How the 2014 Study Was Set Up


The study focused on Cerner Corporation, a self-insured company in Kansas City, MO, specializing in health information technology and care delivery strategies. Cerner’s on-site health centers provide wellness, prevention, pharmacy services, and primary care, including chiropractic care, to all employees enrolled in Cerner’s health plan.


The 36-month retrospective study examined 876 employees who received chiropractic care at their place of employment (the on-site group) and 759 employees who received chiropractic care at an off-site community-based chiropractic office (the off-site group).


The study assessed utilization for radiological procedures (i.e., MRI, ultrasound, CT scan, and other radiograph procedures) and clinical utilization (i.e., claims for chiropractic services, physical therapy, or further medical care—inpatient, outpatient, or ER visits).



Key Findings And Facts


Overall the on-site group had much lower health care utilization than the off-site group.


For example, 55.5% of the off-site group received radiology services compared to 38.2% of the on-site group. In addition, repeat radiology services were much higher in the off-site group (20.5%) than the on-site group (10.1%). The authors of the study suggest that chiropractors who were unaffiliated with Cerner’s health plan were more likely to refer patients out of the clinic, thereby increasing costs in the system.


With respect to utilization of outpatient services, 47.3% of the off-site group had outpatient utilization compared to 30.2% of the on-site group. In addition, repeat outpatient services were much higher in the off-site group (29.5%) compared to the on-site group (18.5%). This pattern repeated with utilization of ER—19.0% for the off-site group compared to 13.1% for the on-site group. However, the authors of the study warned that they did not collect comorbidities or patient histories for their study, so it’s unclear whether these statistics were impacted by underlying characteristics of each group.


The study also found that the average number of chiropractic services and physical therapy visits per member were significantly higher with the off-site group. The authors of the study queried whether care packages advertised by community care centers might explain this big gap in utilization between the on-site and off-site groups.




CHIROPRACTIC PERSPECTIVE: David C. Radford, D.C., M.S. urges conservative care first, based on nearly 40 years of experience treating spine cases. He worked in the Spine Center at Lutheran Hospital for several years in the Department of Neurology and Neurosurgery, where many patients had successful non-surgical care. In support of his opinion he pointed out a recent prospective population-based cohort study by B.J. Keeny et al. that was published in the journal Spine May 15, 2013. The authors found that patients who saw a chiropractic physician first for acute occupational lower back demonstrated reduced odds of spine surgery. It was reported that those injured workers whose first provider was a chiropractor had a 1.5% chance of surgery versus those who saw a surgeon first, where their odds were 42.7% for spine surgery within three years. Baseline variables associated with surgery (P < 0.05) in the multivariate model included higher Roland-Morris Disability Questionnaire scores, and greater injury severity. The area under the receiver operating characteristic curve of the multivariate model was 0.93 (95% confidence interval, 0.92-0.95), indicating an excellent ability to discriminate between workers who would versus those who would not have surgery. The authors concluded that there was a very strong association between surgery and first provider type seen for the injury even after adjustment for other important variables.


According to Denise M. Goodman, MD, MS et al. in the April 24, 2013 Journal of the American Medical Association, “Many treatments are available for low back pain. Often exercises and physical therapy can help. Some people benefit from chiropractic therapy or acupuncture.” She also states that “sometimes medications are needed, including analgesics (painkillers) or medications that reduce inflammation. Surgery is not usually needed but may be considered if other therapies have failed.”


Dr. Radford pointed out that today, doctors of chiropractic medicine are very well trained to triage spine patients rapidly and accurately. When a patient has red flags indicating a serious injury or an obvious surgical case, they can help move the patient through what can sometimes be a cumbersome system. He said spine care is often a team effort; injured workers should feel confident starting care with a chiropractic physician.



Study Limitations

The study did not determine whether the care received by the on-site and off-site groups improved their MSD symptoms. The authors of the study wondered whether the higher utilization seen in the off-site group may have been due to a lower quality of care in community care centers. Nor did the study examine cost savings. While the study did not analyze direct and indirect cost savings to Cerner’s health care plan, the authors believed it could be inferred that lower utilization of health care services would result in direct cost savings.


© Copyright 2015 LexisNexis. All rights reserved. Reprinted with permission.




Author Robin E. Kobayashi, J.D., Workers’ Compensation Practice Area Lead at LexisNexis. She is the site coordinator for the LexisNexis Legal Newsroom Workers’ Compensation Law. She has been a Sr. Legal Editor at LexisNexis specializing in workers’ compensation law for over 28 years. She also serves as the Editor-in-Chief of theLexisNexis Workers’ Compensation eNewsletters and the Co-Editor-in-Chief of Workers’ Compensation Emerging Issues Analysis, a 50 state survey of workers’ comp legislation and trends. Contact:

Pair of Calif. Employers Cited after Electrocution Fatalities

The loss of two workers has led to some stiff fines for a pair of employers.

During the same week of July 2014, two of California’s young workers were killed and one seriously injured in separate accidents involving contact with highvoltage electric lines in Mission Viejo and Los Angeles.

Cal/OSHA has cited Five Star Plastering and Winlup Painting Inc. a total of $194,685 for safety violations that contributed to those accidents. In both cases, employers failed to properly train and safeguard employees from the hazards of energized overhead power lines.

“All worksites in California are required to have a thorough work safety plan in place precisely to identify and avoid these types of violent and preventable accidents” said

Christine Baker, director of the Department of Industrial Relations (DIR). Cal/OSHA, formally known as the Division of Occupational Safety and Health, is a division of DIR.
Two 23-year-old employees of Five Star Plastering had been employed as scaffold erectors for three weeks when the accident occurred at Mission Viejo High School.

As part of a three-man crew, they were assigned to erect a multi-stage metal scaffold on the football field. Daniel Pohl was working on the top level when his co-worker, Joshua Shetley, looked up from the ground and noticed that Pohl had fallen unconscious.

Shetley climbed up to revive Pohl, but was thrown from the 20-foot scaffold after coming in contact with the 12,000 volt power lines. Pohl was pronounced dead at the scene, and Shetley was transported to Mission Hospital where he was kept for two weeks due to serious injuries.


Lack of Proper Safety Training

Cal/OSHA determined that Five Star Plastering, based in Laguna Hills, failed to provide its workers with any safety training and also neglected to identify the electrical hazard.

Citations for six violations were issued, with a total of $164,275 in proposed penalties.

Violations included one in the most severe category, willful-serious, for allowing work to be performed in proximity of energized high voltage lines. Other safety violations were related to the lack of overhead protection and helmets for workers exposed to electrical lines, and for failure to complete safety measures prior to erection of the scaffold.

“Employers need to be especially vigilant to ensure that workers with little or no experience can recognize and avoid potential problems. Workers who are new on the job are often less prepared to recognize deadly hazards like what happened in this incident” said Cal/OSHA Chief Juliann Sum.

At a job site in Los Angeles, Erick Ceron-Alegria, a 26-year-old employee of WinlupPainting, was elevated on a boom lift in order to paint balcony railings. The lift was placed closer than the 11-foot required minimum clearance of a 66,000 volt transmission line and made contact, electrocuting the worker.

Cal/OSHA found that Winlup Painting (DBA Certapro Painters), based in Santa Monica, did not properly train employees in safe operation of boom lifts, nor did it adequately identify the hazards of operating an aerial device near high-voltage lines.


Winlup was cited $30,410 in proposed penalties for four violations including two serious accident-related violations.




Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%.  Contact:


©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.





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Handling Chiropractic Claims in Workers’ Compensation

Chiropractic care continues to cause claim management teams problems in workers’ compensation claims.  Based upon these issues, it is important to even the most seasoned claim handler to understand how to deal with these matters.



What is a Chiropractor?


A chiropractor is medical professional whose practice takes on an emphasis in the diagnosis, treatment and prevention of disorders of the neuromusculoskeletal system.  The concern of people trained in the chiropractic arts is the belief that the nervous system plays a major role in all processes found within the body.  As a result, a majority of their care involves a holistic approach to healing.


Chiropractic care is often described as an “alternative medicine,” or a “pseudoscience.”  In the United States, chiropractors have one of the following degrees: Doctor of Chiropractic (D.C.), DCM, BSc, or MSc degree.



Common Concerns with Chiropractors


One of the most common concerns when dealing with chiropractors in the context of workers’ compensation claims is they emphasize ongoing care and treatment.  Based on this perception, there is a belief that a chiropractor will rarely discharge their patients if a treatment modality is not effective or does not provide long-term relief.  This has often resulted in state workers’ compensation systems with medical treatment parameters to limit the length of care under a chiropractor, require specific benchmarks be met before additional treatment should be considered and a requirement of specific objective medical findings before prolonged care can be approved.



Warning Signs When Dealing with Chiropractors


As with any medical claim in workers’ compensation, people who handle and manage claims need to be diligent for waste and abuse within the system.


  • Review chiropractic records for improvement with each session. Signs of “reasonableness and necessity” in medical care and treatment are often dependent upon indications a patient is getting better with each successive treatment.  Claim handlers should question the effectiveness of prolonged care with no signs of improvement.


  • Connections between chiropractors and other medical specialists. In some instances, chiropractors share office space or a common entry with other medical specialists.  When reviewing medical records and billing statements, it is important to note if care is taking place between these types of facilities on the same days.  It is also important to determine if the injured worker is given multiple options by their chiropractor and any “coordination of care” between these parties.


  • Understand terminology used by chiropractors. It is not uncommon for chiropractors to use the term “subluxation” in a medical report.  This is a term that can mean different things in a medical context, but is likely used by chiropractors to document the misalignment of two bones on the spine.  While a work injury can cause subluxation, it can also occur by stress, toxins in the body and everyday events.  Use of an expert deposition may be required to determine accurately the actual cause of this condition.




Regardless of the perception, it is important to remember that chiropractors have a legitimate role in the delivery of medical care and treatment in workers’ compensation cases.  Notwithstanding this reality, it is essential that members of the claim management team better understand this profession and how they operate.



Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment.  Contact:


©2015 Amaxx LLC. All rights reserved under International Copyright Law.





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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.


Ohio BWC Looks for Double Digit Rate Drop

Ohio’s private employers are not likely to complain when they hear this news. Ohio Bureau of Workers Compensation (BWC) Administrator/CEO Steve Buehr recently announced a proposal to again reduce overall rate levels for private employers beginning July 1.

The 10.8 percent reduction, which was proposed during the board’s Actuarial Committee January meeting, would result in a decrease in projected annual premium of $153 million. If adopted, private employer rate levels will be 21.4 percent lower than the rate levels in effect since Jan. 1, 2011.

“The ability of employers to expand and create jobs is directly tied to a number of factors, including the cost of their workers compensation coverage. That’s why low and stable rates have been one of our highest ongoing priorities,” said Buehrer. “This 21.4 percent reduction over the past five years, combined with strong safety programs that reduce claims by supporting accident prevention and a healthy workforce, is creating more flexibility for employers to invest in their operations and workforce.”



Expectations of Lower Claim Frequency

The proposed double digit reduction is attributable to a number of factors, including lower expected claim frequency, as well as the upcoming adoption of a prospective billing system.

BWC currently bills employers in arrears, meaning businesses receive coverage and are billed at a later date. Under the new system of prospective billing, BWC will collect premiums before extending coverage. Prospective billing is the industry standard practice and enables BWC to lower rates in reflection of increased investment income.

As previously announced, BWC will also issue a one-time premium credit totaling $1.2 billion to private employers and local governments to keep them from being “double-billed” while transitioning billing practices. Details on prospective billing are available at

The proposed 10.8 percent reduction is an overall statewide average. The actual premium paid by individual private employers will depend on a number of factors, including the expected future costs in their industry segment, their recent claims history, and their participation in various premium credit and savings programs.

Ohio local governments are also benefitting from rate reductions and are paying nearly 20 percent less than they were in 2011.
The Board of Directors will vote on the proposal during its next meeting, which is scheduled for Friday, Feb. 27, 2015.




Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%.  Contact:


©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.





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The Importance Of Employer’s Injury Investigation

Once an injury happens many times the employer will abandon the investigation to the insurance carrier and adjuster.  Maybe they feel as if their input doesn’t matter.  This should not be the case, as I have witnessed many a claim spun around due to differing information gathered by the employer.


The employer has access to many items the claims adjuster will not have access to.  After all, the other workers at this facility see this injured worker day in and day out, before they were hurt from work allegedly.  They could be casual friends with the injured party.  If not friends, they are at least around to hear something out of the rumor mill that could help with the investigation of the claim.  What could seem like a minor detail to another worker could be the major breakthrough that the claims adjuster needed.  Below we mention a few things the employer can keep in mind when investigating the claim on their end:



Pay attention to dates and to body parts


The first thing the adjuster needs to know is what body part was injured, and when.  Even more important is when the injury is a repetitive motion type of claim from occupational exposure.  If a worker states their shoulder became bothersome 2 months ago, did they tell anyone?  Why not?  Did the pain stay in the same area, or did it reticulate down the arm?  Were they able to do their same job during this time?  If so, no supervisor noted any issues or failed to see any type of pain behavior?  Were production numbers the same?  Did any facet of the job change at all that could have led to the injury happening?  Why or why not?


These are just a few examples of questions that should be asked.  It is almost as if every answer the worker could have to each question could be answered with a “why?”  How could they not mention anything to anyone?  How were they able to keep pace when they alleged getting injured a month ago?  Why would they not want treatment?  All of the answers to these questions play a role in the adjuster investigation as well, because the adjuster will ask most if not all of the same questions.  Then you can compare answers, and see if it all matches up.



Can you videotape the job being completed? If so, take a video


There is no better evidence to show a doctor about how an injury came about than showing them the video of the actual job.  If you fail to have a video of some sort, then the doctor will take the word of the description given by the injured worker.  This may or may not be accurate, and that accuracy can affect the exposure on the claim.  If the job is not near as hand intensive as the worker explains, then that can affect the causal relation.



What are other workers saying about the injury and the worker?  


Rumors are always going to be an issue at work, especially with a non-traumatic injury.  Most of the time other workers are not going to throw their coworker under the bus without good reason.  This does not mean that every little thing they say is going to be true, but it could possibly be true.  That alone warrants an investigation, an ISO sweep, surveillance, and the like.  Personally, I would rather be too thorough.  So as employers, listen to what others are saying and ask around a little.  I have seen countless claims turned around because of 2nd jobs, house-flipping hobbies, businesses ran out of garages, and so on.  More than plenty of those denials began with listening to the rumor mill.


It is also good advice to keep in mind that it is always those employees who seem to fly under the radar.  These are the people you would never think as pulling the rug over your eyes.  Those are the claims that can be the most damaging, and the most expensive.



Trust, But Verify


Always question everything from everyone, all of the time.  It is not that you don’t believe them to some aspect; it is because that is your job.  This is your company’s money on the line, and this is why you are a supervisor or why you are in claims to begin with.  Like I have said in the past, in the world of injury claims, we trust but verify.



Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment.  Contact:


©2015 Amaxx LLC. All rights reserved under International Copyright Law.





SUBSCRIBE: Workers Comp Resource Center Newsletter


Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.


Washington State L&I Cites BusinessAfter Worker’s Death

The death of an employee at one business in the Pacific Northwest has meant significant ramifications for one business owner.


The Department of Labor & Industries (L&I) has cited an Everett company for multiple safety violations related to the death of a worker last July. Nineteen-year-old Bradley Hogue was killed by a rotating auger while working inside the hopper of a bark-blower truck at a Duvall home.


Pacific Topsoils has been cited for two willful and 14 serious violations, with penalties totaling $199,000. The employer has also been identified as a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.


“The loss of this young man’s life is a tragedy that could have been prevented if the employer had followed basic safety and health rules that protects workers from moving machinery,” said L&I Assistant Director Anne Soiza. “We hope this citation and the penalties serve as a deterrent so that nothing like this ever happens again.”


Following the July incident that killed Hogue, L&I issued a bark and mulch-blower hazard alert to warn others in the landscaping business of the danger of working in hoppers while the equipment is running.


Workers Exposed to 3 Major Safety Issues


The L&I investigation found that Pacific Topsoils’ workers were regularly assigned to clear jams in the bark-blower truck hoppers while the hoppers were operating. This exposed them to three very hazardous elements: a floor conveyor belt, two rotating-screw conveyors (angled augers) and a rotating stir rod. Exposure to any of these parts of the equipment could potentially result in entanglement, causing severe crushing injuries or death.

Working in and around this type of extremely hazardous equipment requires “lockout/tagout” safety procedures to prevent machinery from starting up or moving during service or maintenance by workers.


The employer was cited for two willful violations. The first was issued for not ensuring lockout/tagout procedures were regularly used; it carries a penalty of $56,000. The second willful violation was issued for not training the employees in the proper use of those critical procedures; it carries a $52,000 penalty.


Additionally, working in the hopper of bark-blower trucks exposed workers to “confined space” hazards. Confined spaces, like hoppers, are areas large enough to accommodate a worker, but aren’t designed for continuous employee occupancy and have limited ways to enter or exit.


When a confined space has one or more hazardous characteristics, such as moving machinery or a potential for engulfment that may harm workers, it’s considered a “permit-required” confined space. That means employers must control access to the area and use a permit system to prevent unauthorized entry. Anyone working in or around a permit-required confined space must be trained and there must be safety measures and rescue procedures in place.


Twelve of the serious violations cited were for failure to implement safe work practices when entering a permit-required confined space. Two other serious violations were cited for not having an effective accident prevention program and for failure to document lockout/tagout procedures. Each of these violations carries a $6,500 penalty.


A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule. A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition.


The employer was given 15 working days to appeal the citation.


Penalty money paid as a result of a citation is placed in the workers compensation supplemental pension fund, helping workers and families of those who have died on the job.




Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%.  Contact:


©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.





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ADA and Return-to-Work Best Practices Webinar / Tues Mar 24 @ 11am EDT

On Tues March 24 @ 11am EDT, prepare for a surprise or two as a group of experts discuss how some common practices in workers’ compensation violate both the spirit and the law of the ADA, as amended in 2009.   The webinar will also clarify what employers who want to abide by the spirit as well as the letter of the ADA should be doing.  Injured workers with significant medical restrictions are likely to meet the expanded definition of people with newly-acquired disabilities — whose jobs should be protected.  This free, one-hour webinar will feature Amaxx Risk Solutions’ Rebecca Shafer, Webility Corp’s Jennifer Christian MD, EEOC’s Aaron Konopasky, Amaxx Risk Solutions’ Michael Stack, and Advisen’s David Bradford as panelists.  They will answer audience questions as time permits during a Q&A period.


This webinar is part of a series that expands on content contained in THE ULTIMATE GUIDE TO LOWERING WORKERS COMP COSTS, a $249 soft-cover book available via



Tues March 24 @ 11am EDT


This is a free, one-hour webinar



  • Rebecca Shafer, JD., President, Amaxx Risk Solutions, Inc., Attorney/Risk Consultant
  • Jennifer Christian, MD, President, Webility Corporation
  • Aaron Konopasky, JD, Senior Attorney Advisor, Equal Employment Opportunity Commission
  • Michael Stack, CPA, Principal, Amaxx Risk Solutions
  • David Bradford, President, Research & Editorial division, Advisen (moderator)



  • When do the employer’s obligations under the ADA kick in for a workers’ comp injury?
  • Can an employer require an employee to return to work after an injury?
  • What’s the difference between light/modified/transitional duty and a reasonable accommodation?
  • Can an employer set a policy about how long a transitional duty position can last?
  • What should the “interactive process” required by the ADA look like — in workers’ comp?
  • How long does an employer have to wait before terminating an employee who can’t come to work?
  • Are indefinite periods of time out of work permissible?
  • Can the injured employee refuse to accept a transitional work assignment?




  • Risk Managers and Safety Directors involved in workers compensation claims management
  • Brokers and Consultants who consult or advise on specific aspects of cost containment
  • Producers looking to impress prospects with the latest strategies to stay on top of workers comp issues



Purchase the book or view sample chapters via or contact Advisen’s Merri Bastone at   Author: Rebecca Shafer, JD.


The book’s topics are organized into the following chapters:

  1. Workers Compensation Insurance Fundamentals
  2. Cost Containment Basics
  3. Training and Building Commitment
  4. Roles & Responsibilities Best Practices
  5. Reporting the Claim
  6. Post Injury Response Procedure
  7. Communication with Employees
  8. Working with Your Insurance Adjuster and TPA
  9. Safety and Loss Control
  10. Wellness Programs
  11. Return to Work and Transitional Duty
  12. Other Indemnity Cost Containment Measures
  13. Directing Medical Care
  14. Medical Cost Containment
  15. Fighting Fraud and Abuse
  16. Rehabilitating the Injured Employee
  17. Managing Prescription Drug Use and Abuse
  18. Claims Resolution and Settlements
  19. Federal Employees Compensation Act (Bonus Chapter)




Join the Workers Compensation Roundtable via

British Businessman Fined for Safety Failures

A Sheffield, Great Britain businessman has been fined after he failed to heed warnings from safety experts to properly guard dangerous machinery.

Peter Herring, who trades as A W Parish in Princess Street, was prosecuted by the Health and Safety Executive (HSE) after an inspector carried out a routine visit to the company in September 2013.

Sheffield Magistrates heard in early January of this year that the inspector noted during the visit that a radial arm drill was unguarded. A telescopic guard was available for the machine but could not be fitted as it was damaged.

HSE served a Prohibition Notice on Herring to prevent use of the drill until it was properly guarded. The court was told that Herring had been served with a similar enforcement notice by HSE in 2003 and a further letter needed to be sent in 2009 when the same radial arm drill was found unguarded.

Proper Guarding Not in Place

HSE prosecuted the company, which makes fire escapes, balustrades and other metalwork, for failing to ensure that effective guarding was in place to prevent operators from getting too close to the rotating parts of the machine.

Peter Herring, trading as A W Parish, of The Level Works, Princess Street, Sheffield, was fined some $756 and ordered to pay nearly $885 in costs after pleading guilty to breaching the Provision and Use of Work Equipment Regulations.

After the case, HSE inspector Andrew Gale noted, “Fortunately, no one at the factory was injured but this was down to chance rather than any good management. Any one of Mr. Herring’s employees could have been seriously injured as a result of operating an unguarded radial arm drill.

“While he had complied with the prohibition notices within the specified timeframe, he neglected safety again and again, and disregarded any lesson he should have learned from previous enforcement action on the exact same machine.

“Employers of whatever size must ensure that effective measures are taken to prevent access to dangerous moving parts of machinery.”




Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%.  Contact:


©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.





SUBSCRIBE: Workers Comp Resource Center Newsletter

Employer Defenses Against Work Comp Claims Involving Marijuana

Trend Favoring The Employer


So far the judicial trend is favoring the employer in defending against injuries and claims involving marijuana use on the job or coming to work under the influence.  Employees terminated or denied employment because of a positive drug test for marijuana have been up held by the courts.


A few of the most noteworthy cases are:


  •                 Montana:  Johnson vs. Columbia Falls Aluminum
  •                 California: Ross vs. Raging Wire
  •                 Michigan: Cassias vs. Wal-Mart
  •                 Washington: Roe vs. Teltec Customer Care Management



Some states allowing medical marijuana have had decisions in favor of the employee.  These cases involved issues where the employee sought use of marijuana to recover from a workers compensation injury.  A few of these cases are:

  •                 Louisiana: Creole Steel vs. Ricky Stewart
  •                 California: Liberty Mutual and Farmers Insurance vs. Cockrell
  •                 New Mexico: Ben’s Auto Services vs. Vailpandro



Arizona, Connecticut, Maine and Rhode Island have written protection sections for the employee in their laws.  However there is still question if these protections are legal and constitutional.  At this point in time it seems rulings are unavailable.




Federal Law Should Trump State Law As Marijuana Still Illegal



Federal law should trump state law since Federal Law still has marijuana as an illegal substance. Further laws and rules for commercial drivers, pilots, railroad engineers, and public transportation operators all have adverse penalties for marijuana and other substance abuses.



OSHA general duty clauses require employers to provide a safe place to work.  The employer must provide that work areas are free from hazards that may cause injury, or death. Drug impairment falls into this requirement.



The Department of Justice advised it would continue to enforce these laws yet they have refused to challenge states that have legalized marijuana.  Hence there is a mixed message which leaves room for the courts to interpret according to their thought rather than law.



Eventually it is expected that the employer will have to prove that the injury or death was the sole result of marijuana use.  This may be more complex than a drug test.   While marijuana remains in the system for days after usage, it may not be easy to ascertain actual intoxication at the time of loss.



This will require very detailed investigation as to facts of the loss.  Witnesses will be necessary to testify as to the employee’s actions just prior to the incident.  They will need to be detailed and unimpeachable.  Witness statements, preferably under oath or through depositions will assist in this area.



Extenuating situations or other contributing factors will need to be ruled out.  Such items may be wet floors, unsafe machinery, safety violations, improper instruction, weak direction and control by the supervisor, poor training, little or no experience as well as many more situations.




In the event of an extenuating situation there still could be liability placed on the employer to cover the claim.




Employers Must Take Firm Position Against Weakening Position



The judicial trend favors the employer concerning marijuana use in the workplace. However, it is also apparent that today’s legal and socio-economic trends are going to chip away at this protection until it disappears.  Therefore, employers must take a firm position against any weakening of these present laws and decisions.



With the help of professional persons well versed in this topic employers must develop and implement strong polices against marijuana and other substance abuse on the job.  If allowed, the program should also address off duty restrictions.   Make certain each and every employee is made aware of the program and signs an affidavit accepting compliance and willingness to accept violation punishments stated in the policy.



When a loss occurs that involves abuse of the policy, demand that the claim technicians and handlers investigate thoroughly.  They must be admonished to defend the claim to their maximum allowed by law.  Do not allow any settlements or dispositions that could set an adverse trend against employer rights.  Keep contact with the adjusters as often as necessary until the claim is resolved.



Implement regularly scheduled meetings with employees to cover as constant reminders of the policy and compliance.  Publish general situations where employees were penalized according to policy violation.  Be very careful not to divulge too many specifics.  The publicity notice should be developed by the corporate legal department.




Employees Made Aware of a No Tolerance Program More Likely to Abide by Program



Employees who are made aware of a no tolerance program disciplines are more likely to abide by the program. Work with industry and professional organizations to have legislation that maintains employer defenses and rights in the substance abuse areas. Keep all abuse policy programs current.  Review the standards with legal counsel at least twice a year.

OSHA Renews Safety Alliance with LIA

Alliances between groups to keep worker safe is a never-ending retirement to why teamwork is a key component of workplace safety.

The Occupational Safety and Health Administration (OSHA) has renewed an alliance with the Laser Institute of America to help protect workers from exposure to beam and non-beam laser hazards in industrial, construction, medical and research workplaces.

“Workers unprotected from laser exposure can suffer serious eye and skin injuries including permanent blindness and tissue damage,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “We will continue to work together to produce valuable safety and health information and training to protect workers using laser technology.”

During the five-year alliance, participants will provide annual training on the Best Practices Seminar on Laser Safety and develop a Webinar training program based on the seminar, and distribute laser safety guidance products at safety conferences and exhibits.


Fact Sheets, Guidance Document Part of Process

OSHA and LIA previously developed fact sheets on the effects of lasers on the eye and skin, hazards associated with using high-power welders and cutters, and materials for use during hazard analysis of workplaces with lasers.

The alliance also developed a guidance document outlining 10 steps necessary to begin a laser safety program in the health industry, and conducted 18 Laser Safety Best Practices seminars that trained more than 500 OSHA compliance personnel on what to look for and ask when entering facilities that use lasers.

LIA, founded in 1968, is a professional society for laser applications and safety that provides information to industrial, medical, research and government communities. The organization includes more than 1,600 corporate and individual members.




Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%.  Contact:


©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.





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