Workplace Health and Safety Queensland (Australia) is introducing a new initiative involving every medium sized business across the state. For more Information: www.reduceyourworkerscomp.com
As part of the initiative Workplace Health and Safety Queensland will visit every medium sized business in Queensland in 2010 and 2011 to check their compliance with the Workplace Health and Safety Act 1995.
Workplace Health and Safety Queensland is offering businesses a free voluntary advisory session to identify workplace health and safety issues and develop better safety practices before an inspection takes place.
Why are we conducting this initiative?
In Queensland there are more than 8,000 medium sized businesses, representing about 4% of all businesses paying premiums to WorkCover Queensland. However, these businesses account for over 30% of all workers' comp claims lodged every year. The initiative aims to improve the overall health and safety of Queensland workers and workplaces by:
1. Reducing the number of injuries and fatalities occurring in their business.
2. Increasing their awareness and knowledge of workplace health and safety risks and obligations. and
3. Improving their capability to manage effectively workplace health and safety risks in consultation with workers.
Am I a medium sized business?
For this initiative you are considered a medium sized business if your declared wages to WorkCover Queensland during the 2008-2009 financial years was between $1 million and $10 million. Every medium sized business in Queensland will be inspected regardless of previous contact with Workplace Health and Safety Queensland.
When does the initiative start?
The initiative will be conducted in two separate waves. The first wave starts in March 2010. Half of Queensland's medium sized businesses will receive a letter advising them of the initiative. If you are a medium sized business and don’t receive a letter in March 2010, you will receive a letter later in 2010 advising you are part of the second wave.
How will businesses be selected for each wave?
Businesses participating in each wave are determined by the optimum use of WHSQ's inspector resources. Claims history or previous inspector visits will not be used to select which business is involved in each wave.
What is involved in the free advisory session?
The advisory session focuses on safety systems to prevent workplace injuries. Key safety principles are explained and tools and techniques are provided to help businesses develop safe work practices. It is also an opportunity to learn more about what will happen during the inspection.
How do I register for a free advisory session?
You can only register for an advisory as part of this initiative once you receive your letter in 2010. The letter contains a unique registration code you must use to register for an advisory session. When the letter arrives you can either visit the WHSQ website (www.worksafe.qld.gov.au) to register or you can phone the Workplace Health and Safety Infoline on 1300 369 915. Businesses can only register a maximum of two attendees to the advisory session.
What is involved in the inspection?
The inspection focuses on assessing the effectiveness of your health and safety systems, and identifying opportunities for improvement. Inspectors will draw on their enforcement options under workplace health and safety legislation to address any health and safety issues identified. More information about the inspections, including the audit checklists being used by the inspectors will be available on the WHSQ website from March 2010. (workersxzcompxzkit)
How can I prepare for the inspector visit?
Attending a free advisory session is the best way for businesses to prepare for the inspection.
Businesses can also conduct self-assessments and review safety management systems within their workplace. Resources available to assist in this process include:
1. Serious about Safe Business pack - Contains tools, checklists and information to help you implement a simple safety management system to make your workplace safer.
2. Industry hotspots fact sheets – Safety tips on how to prevent the most common injuries in the following industries:
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Most decisions people make are based on their knowledge and prior experience. The same is true for shopping for workers' compensation insurance for your company. If you company has an acceptable claims' history, your workers' compensation insurer normally renews your policy based on the current premium rate for your job classifications and total payroll.
I just spoke with a yoga studio owner that had not obtained workers comp coverage until this year, but now the state of NY is trying to collect premiums for all prior years when the yoga instructors were not covered.
However, you may take a look at the new premium for the upcoming renewal and say “Whoa, that is too much.” As calling your broker to complain is an unpleasant task, you put it off. (Now, if you are in a monopolistic state, skip the rest of this information, pay the new higher premium and ask for a premium audit).
You know from personal experience that when your car insurance went up, you called your agent the day before the policy was to expire. Your car insurance agent asked a few questions, switched you to a new company with a lower rate, effective the next day. So, based on your car insurance experience, you wait until the day before your workers' compensation policy expiration to call your workers' compensation broker. You quickly learn switching workers' compensation insurance is not as easy as switching car insurance. You are now in trouble.
The broker needs updated information from your company in order to shop new work comp insurers. In order to get you quality quotes, the broker needs all your job classifications and for each of them. As the premium rates may have changed recently, the broker will have to contact each potential insurer and, in those states having one, the state fund. While some insurers may give the broker an immediate quote, there will be some insurers will not be able to do so until an underwriter has reviewed the request for new business.
You now realize you must plan ahead for a workers' compensation quote.
Sample Plan for Applying for a Workers' Compensation Quote
BEFORE YOU APPLY
Lower your experience modification rate (a comparison between your company and other companies in your industry) by:
1. Having an effective safety program to eliminate claims.
2. Having an established protocol to report injuries timely.
3. Having trained supervisors and management team.
4. Having an effective return-to-work program with transitional duty.
5. Utilizing the medical cost management program of your work comp insurer.
HOW OFTEN TO APPLY TO GET NEW WORK COMP COVERAGE
If you apply for new coverage with a new work comp insurer every year, you will quickly get the reputation as a “shopper” which will result in the insurers not considering your application seriously. The insurers will be reluctant to bid, if they bid at all, as they figure you are more trouble then you are worth and they know they cannot count on your company renewing.
If you rarely shop for new coverage, and have been with the same work comp insurer for many years, their pricing may no longer be competitive. The insurer's initial pricing may have seen yearly price increases making it the most expensive insurer.
In addition to increased pricing, if you never apply for new coverage, your loyalty and business may become taken for granted. The level of service from the broker and from the work comp insurer gradually declines as they assume you will always be there.
Since you should not shop for new coverage every year and should not stay forever with the same carrier, the question becomes how often to apply for new coverage? The most professional brokers normally recommend shopping the market every three or four years. This tactic keeps premiums in line, plus the broker and the carrier stay focused on providing great service to your company.
WHEN TO APPLY
If you have been with the same work comp insurer for three or four years, then six months before your current policy renewal, ask your broker to arrange for a premium audit if you feel your work comp premiums are too high. An independent audit of the work comp premium could result in a nice refund (or if you have not been working to lower your experience modification rate, it could result in additional premium owed).
Your broker may feel the current work comp insurer offers great service. Ask your broker to negotiate the best possible deal with the current insurer. You may get a price quote that would be hard to beat, and would save you the disruption and expense of switching to a new insurer. Problem solved.
However, if you do not feel the current work comp insurer service is good, and you are not happy with the pricing, then it is time to look elsewhere. Three months before your renewal date, ask your broker to shop your coverage with three to five other work comp insurers. This gives the broker adequate time to prepare the presentation of your company to the potential new insurers and it gives the potential new insurers time to evaluate your company.
At forty-five days prior to the expiration date of the current work comp policy, the broker should have all the information gathered for you. Review and evaluate the information looking for the best combination of pricing and service.
No later than 30 days prior to the end of the current policy advise your broker of your selection of the new work comp insurer. This will give the broker and the insurer the necessary lead-time to get the policy issued and everything place for the new coverage.
AFTER THE INCEPTION OF THE NEW POLICY
When the new work comp insurance policy is received, review it carefully. If there is anything needing change, work with your broker to quickly get the corrections done. (workersxzcompxzkit)
Start planning for the next renewal or the next time you shop for work comp insurance by working to reduce your on-going work comp cost. Contact us for assistance with your shopping for new coverage or lowering your workers’ compensation cost.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_
Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Businesses across New South Wales are being urged to prioritize the safety of young workers in the new year according to WorkCover New South Wales (NSW).
WorkCover NSW Chief Executive Lisa Hunt said many young people and school leavers start their first job in the new year, and employers and colleagues should take special care to alert these workers to potential safety hazards.
“Workers under 25 may be more vulnerable to workplace safety risks because of their youth and inexperience or reluctance to speak up about safety concerns,” Hunt said. “WorkCover data indicates that each day in New South Wales, 15 young people are injured on the job. Around 13% of all employment injuries and occupational diseases occur among the State’s 562,000 young workers."
According to Hunt, in 2007/08, more than 5,600 compensation claims were lodged by young workers, and although this is a 3.5% decrease on the previous year, there is still more work to be done to further reduce injuries.
“Every workplace injury is one too many," Hunt noted. “Employers are required to ensure that all workers, including those new to a job or industry, are provided with sufficient training and support to undertake their work safely." Hunt said particular attention must be taken in high-risk areas such as working at heights, using electrical equipment, plant and machinery and working with chemicals and dangerous goods.
Employers, in consultation with their workers should:
1. Provide adequate training and supervision in all tasks.
2. Provide a comprehensive induction.
3. Identify safety risks and put procedures in place to reduce and control risks.
4. Encourage open communication about safety issues.
Young workers also have a responsibility to conduct their work safely and should:
1. Follow all safety procedures and ask questions if uncertain.
2. Report any risks and hazards to a supervisor or colleague.
3. Use safety equipment and protective clothing if needed.
4. Find out how to report an injury. (workersxzcompxzkit)
“I urge all employers and workers returning to work after the holiday period to make workplace safety a priority throughout the year,” Hunt said.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers
Compensation_Claims/index.php
FREE WC IQ Test: http://www.workerscompkit.com/intro/
WC Books: http://www.reduceyourworkerscomp.com/workers-comp-books-manuals.php
TD Calculator: www.reduceyourworkerscomp.com/transitional-duty-cost-calculator.php
WC Calculator: http://www.reduceyourworkerscomp.com/calculator.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues or to purchase workers compensation insurance.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Persons who perpetrate fraud are certainly persistent as the New York State Insurance Department discovered recently. A man, convicted of insurance fraud in 2003 was arrested on the same charge this month.
Investigators found he falsified a medical examination to get full workers’ compensation benefits when he may have been entitled only to partial benefits.
The NYSID reported collected $6,600 in benefits he was not entitled to receive. He started collecting the benefits after suffering a back injury in a traffic accident in 2007, while working as a trash collector for a private garbage collection company.
Insurance Department Frauds Bureau investigators did not dispute the injury, but said he failed to disclose a similar reported injury occurring earlier and leading to his arrest in 2003. He would not have received full wage replacement benefits had he disclosed the earlier injury.
In 2003, the subject pleaded guilty in to charges of insurance fraud and workers’ comp fraud for exaggerating the extent of a disability caused when he suffered an earlier work-related injury. He was sentenced to pay $8,400 in restitution, serve 60 days in jail and serve five years’ probation. (workersxzcompxzkit)
The man now faces charges of third degree insurance fraud, third degree grand larceny and committing a fraudulent practice. If convicted of the new charges, the worker may serve up to four years in jail.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_
Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Workers’ Compensation and Medicare overlap is a huge topic – impossible to cover every aspect of how they are interrelated. Here, we will discuss some of the more common issues that arise.
Under federal law, the U. S. Department of Health & Human Services operates the Centers for Medicare and Medicaid Services (CMS). The law requires all workers' compensation insurers (including self-insurers, risk retention groups, alien insurers and non-admitted insurers writing excess coverage) to protect the interest of Medicare when a work comp claim settlement meets the criteria set forth in the Medicare Set-aside Arrangements (MSA) statutes.
A MSA is a settlement plan where a portion of the settlement proceeds are set-aside in a trust to pay the claimant's future medical expense. MSA keeps Medicare from paying for medical care that should be paid by the work comp insurer. [Please note: if the work comp claim settlement leaves future medical care open and only closes the indemnity portion of the claim, the MSA statutes do not apply].
The requirements for requesting a MSA approval when the future medical portion of the work comp claim is being settled include:
1. CMS must review and approve an MSA if the work comp claimant is a beneficiary of Medicare at the time of the injury, and the total settlement amount is greater than $25,000.
2. There is a “reasonable expectation” of Medicare enrollment within 30 months of the settlement date, and total settlement amount for both disability and medical is greater than $250,000.
What is “reasonable expectation” of Medicare enrollment within 30 months? Glad you ask. It is:
1. Anyone age sixty-two years and six months, or older, at the time of settlement.
2. Anyone under age 65 with permanent disabilities.
3. The claimant has applied for Social Security Disability Benefits.
4. The claimant has been denied Social Security Disability Benefits but anticipates appealing the denial decision.
5. The claimant has already filed an appeal of Social Security Disability Benefits denial.
6. Anyone with end stage renal failure.
When a MSA is submitted to CMS it needs to contain:
1. The claimant's identity.
2. The claimant's social security number.
3. A copy of the settlement, judgment, award or other payment agreement.
4. Medical information such as medical records, medical diagnosis and prognosis.
5. Life care plans or MSA cost-projections.
6. Life expectancy information.
7. The payment history on the claim.
8. Any other information showing Medicare’s interest were protected in the resolution of the claim.
Do not ignore Medicare's interest when settling a work comp claim. The CMS by law has a priority right of recovery for any payments they make that should have been covered by work comp. The CMS can pursue recovery against any entity receiving a payment from them.
A MSA is not required for work comp settlements of $25,000 or less. However, for current beneficiaries of Medicare, CMS still has the right of full recovery for ANY medical payments by Medicare that should have been paid by work comp.
While CMS has not had the man-power to cross check all work comp claims against Medicare's enrollment, the day this is done electronically is not far away. A question the work comp adjusters need to start asking during the initial interview with the claimant is “Are you enrolled in Medicare or anticipate enrolling in Medicare in the next 30 months?”
On the other hand, take the claimant who settles the work comp claim for $245,000. The claimant at the time of settlement does not have a “reasonable expectation” of enrolling in Medicare within the next 30 months. Five years after the work comp settlement, the claimant has spent the settlement funds on other things and has not saved anything to cover on-going medical needs due to the work comp injury. As the claimant did not have a “reasonable expectation” of enrolling in Medicare at the time of the settlement, the claimant can enroll in Medicare and Medicare will pay for the work comp related services without having a right to recovery. (workersxzcompxzkit)
When you create a MSA, the claimant often wants to self-administer the trust created. If your state law will allow the claimant to administer his own trust, it is okay with the CMS. What the claimant often does not realize is the self-administered trust is subject to the same rules and regulations as any other set-aside arrangement
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Figuring out who is considered a covered employee for purposes of workers’ compensation often is a tricky matter and sometimes a source of litigation when the subject of a claim. Each jurisdiction varies and each case is evaluated on its own merits. That said there are similar basic principles to reference in most jurisdictions in making the determination.
The vast majority of employees in a typical employee/employer relationship are covered. For example, checkers at a grocery store, factory workers, fast food workers and hospital nurses are generally all covered. Very small employers with perhaps 3-5 or fewer employees are not always required by law to carry workers’ compensation insurance. Owners and corporate officers often are allowed to opt out of coverage.
Independent contractors and subcontractors seem to create the most questions. Employers should require proof of workers’ compensation insurance when hiring independent contractors. If the contractor proves ultimately to be uninsured, chances are the employer hiring the contractor will become responsible for the injuries of the contactor’s employees then referred to as statutory employees. The same goes for hiring an individual who presents as a sole independent contractor as often happens for example in the long-haul trucking industry.
Consider these circumstances when evaluating an employee/employer relationship:
1. Who has direction and control of the work being done?
2. Who has the right to hire or fire workers?
3. Who is paying workers and from whose account?
4. Who owns the equipment used in performing the job?
5. Are taxes withheld upon payment?
6. Is the work being done normally performed by this employer?
Volunteers can at times be considered employees and allowed benefits when there is some consideration provided to the volunteer for services, including meals, transportation or room and board. Loaned or borrowed employees also may create a special set of circumstances in considering the employer/employee relationship.
Usually exempt and not considered employees are causal employees – those earning less than a certain dollar amount for example, $1,500 annually, domestic staff and farm laborers.
Generally speaking, employees covered by federal employer’s legislation (Railroad Workers, Longshoreman and Harbor Workers Act and Jones Act) are exempt or not covered by state workers’ compensation statutes. (workersxzcompxzkit)
Understanding the differences in all of these situations is important both in the application process and purchase of workers’ compensation insurance as well as when it comes time to consider payment of a claim.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
An employer’s Experience Modification Factor (“mod”) is an important number in a premium calculation and tells a story in and of itself. This is truly a modification factor because an employer’s rate or premium is modified or adjusted up or down based upon the factor.
NCCI, the National Council on Compensation Insurance (a rating bureau) calculates mods annually for non-self insured employers, usually based on a three-year history of loss experience. Some states have rating bureaus independent of NCCI. Typically the most recent complete year is not included but the three policy years prior to that count. For example, for policies expiring on January 1, 2010, the three years included would be January 1, 2006–January 1, 2009. Older years experience drop off as time progresses every year. So, a company is essentially only penalized for three years for an exceptionally bad year from a loss standpoint.
The calculation of a mod is based on a standardized formula applying payroll, payroll classifications (class codes associated with the type of job or risk), claim frequency (number of claims) and claim severity (cost of claims). Claim frequency is weighted slightly higher than severity and medical-only claims are discounted so they don’t carry nearly the weight of a claim involving an indemnity payment (usually lost-time or settlement).
An average is also calculated for all employers in the same state in the same business based upon information submitted by insurance companies to the rating bureau. A premium credit discounting the manual premium is given to reward employers with better than average performance in terms of loss experience and premium debits are applied to the annual premium for employers with worse than average performance or experience resulting in, of course, a higher premium.
For example, a company with an experience mod of 1.10 is performing at a level 10% worse than the average of other similar companies in the same state. A company with a mod of .90 is performing at a level 10% better than the average of peer companies. (workersxzcompxzkit)
An employer’s mod can be controlled by implementing solid safety programs to prevent losses and once losses occur, effective claims management and early return-to-work strategies to reduce claim costs. Every employee should be engaged in workplace safety. All of these things matter at the end of the day because they all have an impact on your premium and ultimately, your bottom line.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Employers across London are asked to ensure their workers are kept safe in 2010 as Britain's safety watchdog urges improvement OVER last year. According to the Health and Safety Executive (HSE), last year around 280 work-related incidents occurred across London each week, an annual figure of 14,576 people being killed or injured. HSE hopes this figure will act as a stark reminder to employers and staff to make their workplaces safer this New Year and drive down casualty rates.
The 2008/09 statistics show 20 people were killed at work across the region while 2,848 sustained major injuries and 11,708 more suffered injuries requiring more than three days absence. The figures compare with 26 fatalities, 2,948 major injuries, and 12,568 cases requiring more than three days absence in 2007/08. (workersxzcompxzkit)
Including other absences due to ill health caused by work activities, this equates to 1.7 million lost work days at a massive cost to the economy and individual businesses, which is why HSE says it makes perfect sense to make working environments safe. The organization warns that if employers insist on compromising the health of their employees then HSE will not hesitate in taking enforcement action. Last year HSE prosecuted 59 firms for breaching health and safety legislation and regulations.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_
Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues. ©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Many Ontario workplaces are now required to track, report and develop plans to reduce the toxic substances they use, create and release beginning January 1, 2010.
The Toxics Reduction Act was passed on June 3, 2009 by the Ontario government. The stated purpose of this environmental law is to "help prevent pollution and protect human health and the environment by reducing the use, creation and release of toxic substances and to better inform Ontarians of toxic substances in their communities." The Ministry of the Environment (MOE) has now published regulation 455/09, the first under the Toxics Reduction Act.
Regulation 455/09 spells out the requirements facilities must meet to comply with the Act, including:
1. Tracking toxic substances used, created and released.
2. Development of plans, including options to reduce each toxic substance.
3. Making summaries of the plan available to the public.
4. Reporting to the MOE on annual progress in reducing toxic substances and making certain information available to the public.
5. Updating the overall plan at least every five years.
According to a MOE fact sheet, the Toxics Reduction Act and regulation applies to approximately 2000 facilities in the manufacturing and mineral processing sectors (excluding physical extraction, crushing or grinding) required to report to the National Pollutant Release Inventory (NPRI) and to the MOE under Regulation 127/01 for acetone.
The Toxics Reduction Act is loosely modeled after Massachusetts' Toxics Use Reduction Act (TURA) passed in 1989. In both cases, the requirement to develop a toxics use reduction plan is mandatory while implementation is not.
A major difference between these legislated toxic use reduction initiatives is the fact Massachusetts created the Toxics Use Reduction Institute dedicated to providing research and support services to Massachusetts companies wanting to implement their toxics use reduction plans.
The state’s legislation also set targets for reducing the generation of toxic waste by 50% statewide. These targets were met after just nine years. The success of this system continues today. Companies in Massachusetts reduced their use of toxic chemicals by 40%, waste by 71% and on-site releases by 91%.
In Ontario though workers, their representatives and others are concerned similar outcomes will be difficult due to a number of shortcomings in the current Toxics Reductions Act and regulation. For instance, the regulation fails to prescribe clearly established reduction targets to help inspire innovation or benchmark progress. Many believe the lack of a dedicated Toxics Use Reduction Institute will further hamper any hope of real success.
Another major concern is employers are not required to consult with the joint health and safety committee (JHSC) when developing the toxics reduction plan or at any other stage in the process. There is also no requirement for the employer to provide a copy of the plan to the JHSC or union.
According to Vern Edwards, director, health, safety and environment, Ontario Federation of Labour, "Labour is pushing for this to be rectified with an additional regulation."
There seems to be government interest for this. In fact, in their fact sheet about the new regulation dated December 4, 2009, the MOE stated they plan "to consult on an enhanced toxics reduction planning process by building on the expertise and resources found in the workplace." (workersxzcompxzkit)
"Workers and members of joint committees would certainly qualify as useful resources in any enhanced toxics reduction planning process," says Edwards. "Labour will continue attempts to convince the MOE to mandate the involvement of workers and joint committees. Only then can we begin to ensure the most effective solutions are planned and implemented for the health and well-being of workers and the wider community."
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_
Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
How Would You Decide: Injured Subcontactor’s Lawsuit Against Oil Refinery Barred by “Trade or Business” Defense
Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.
Here's What Happened
Berthelot, a "journeyman lineman" who worked with Ca-Par Electric, Inc. ("Ca-Par"), responded to a telephone call from a Murphy Oil, Inc. ("Murphy") employee concerning a power outage at Murphy's oil refinery. Ca-Par had no actual contract with Murphy to perform electrical repair work; rather it dealt with an intermediate party, Ordes Electric, Inc. ("Ordes") that, in turn, had a written contract with Murphy. Berthelot began the necessary repair work, but suffered injuries when a fuse and transformer "blew up simultaneously." He subsequently filed a civil action against Murphy, alleging tort liability.
Murphy defended on the grounds that it was immune by virtue of the Louisiana workers' compensation laws. At issue was Louisiana's particular application of the "statutory employer" rule that provides generally that any principal who undertakes to have work performed by a contractor is a "statutory employer" with respect to work that is "a part of" the principal's "trade, business, or occupation" [see La. Rev. Stat. Ann. § 23:1061], and is accordingly immune from civil suit. Berthelot contended his work was not part of Murphy's trade, business, or occupation since the power outage was "confined only to a restricted area" and that the refinery continued to generate "its products, goods or services" during the outage. Murphy disagreed, contending that the work performed by Berthelot was "an integral part of and essential to the ability of Murphy to generate its goods, products or services."
Here's What The Court Decided:
In Berthelot v. Murphy Oil, Inc., 2010 U.S. Dist. LEXIS 1140 (E.D. La. Jan. 7, 2010), the U.S. District Court for the Eastern District of Louisiana agreed with Murphy and granted its motion for summary judgment against Berthelot. The district court observed that the Louisiana workers' compensation legislation had always provided immunity to statutory employers and that to prevail on its "trade, business or occupation" defense, Murphy was required to demonstrate that both: (1) it entered into a written contract with Berthelot's immediate employer or his statutory employer; and (2) the written contract recognized Murphy as a statutory employer [La. Rev. Stat. Ann. § 23:1061(A)(3)]. The court indicated that if Murphy made such a showing, the burden shifted to Berthelot to come forward with sufficient evidence for a reasonable jury to find that the work he performed was not an integral part of or essential to Murphy's ability to generate goods, products or services. According to the court, Murphy satisfied its burden; Berthelot had not.
The court reasoned that while there was no contract between Murphy and Berthelot's employer, Ca-Par, there was such an agreement between Murphy and Ordes who, in turn, had contracted with Ca-Par. That agreement specifically recognized Murphy as a statutory employer. Thus, the burden shifted to Berthelot to show his work was not an integral part of Murphy's business. Berthelot contended that his work was not integral or essential to Murphy's business because Murphy itself could not have performed the work—it employed no qualified electricians—and because Murphy continued producing goods and services while the work was performed. The court indicated, however, that whether an employer itself could perform the work did not determine its statutory employer status. The court indicated that working electricity was an essential part of Murphy's day-to-day operations and that Berthelot was performing work to maintain the uninterrupted flow of this electricity to Murphy's equipment. Berthelot conceded that the high voltage transformer on which he was working was connected to Murphy's equipment and that the equipment could not be operated while the work was performed. (workersxzcompxzkit) According to the court, under Louisiana law, this was sufficient to establish that Berthelot's work was essential to or an integral part of Murphy's ability to produce goods, products or services. Workers' compensation benefits were Berthelot's sole remedy as against Murphy.
See generally Larson's Workers' Compensation Law, § 70.06, 111.04.
Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation
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