EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

Fine For Employee Deaths Amounts To Slap On The Wrist

 

As the Alberta (Canada) Federation of Labor (AFL) sees it, the recent fine given to oil company Sinopec amounts to nothing more than a slap on the wrist.
 
According to the AFL, the $1.5 million fine will have little or no impact on halting the company from continuing to have in place reported practices that endanger their employees.
 
During a recent court hearing, the Canadian subsidiary of Chinese oil corporation Sinopec was fined $1.5 million for an incident that led to the deaths of a pair of their employees their lives.
 
As AFL President Gil McGowan put it, “One and a half million dollars doesn’t even amount to a rounding error in the annual budget of a monstrous global corporation like Sinopec. This fine does nothing to dissuade them from playing fast and loose with the safety of their workforce.”
 
 
Imported Third World Health and Safety Standards
 
The story unfolded when Sinopec and a pair of other companies were charged after a 2007 container collapse resulted in the deaths of two temporary foreign workers at an oil sands project near Fort McKay, Alberta. In all, 53 charges were handed down against the companies, of which Sinopec pled guilty to three charges of failing to oversee the health and safety of its employees.
 
McGowan noted that “Sinopec didn’t just import workers from the third world, they also imported third-world health and safety standards. Alberta missed its chance to send a message that Chinese companies working in the oil sands need to play by Canadian rules.”
 
While McGowan added that it might be the largest safety fine in Alberta history, it further demonstrates that Alberta has a long history in failing to aggressively enforce its own workplace safety rules.
 
The two victims, Ge Genbao, 28, and Lui Hongliang, 33, were just two of the more than 130 Cantonese-speaking workers who were transported from China for the Sinopec oil sands project.
 
 
Complete Abdication of Safety Responsibility
 
“We shouldn’t forget the circumstances that led to the deaths of Genbao and Hongliang,” McGowan went on to say. “The company did not get the construction plans certified by an engineer. The wires weren’t strong enough to hold up against the wind. It was a complete abdication of responsibility on the part of the employer.”
 
China Petrochemical Corporation (Sinopec Group) is a super-large petroleum and petrochemical enterprise group established in July 1998 on the basis of the former China Petrochemical Corp.
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

Death of Washington Scuba Diver Leads to Safety Citations

 

The death of diver in Washington State last summer while on the job has led to repercussions for one department.
 
State officials with The Department of Labor & Industries (L&I) recently cited the Department of Natural Resources (DNR) for 15 worker-safety violations as part of their investigation into a drowning fatality involving a DNR diver last summer. The citation represents a potential penalty of $172,900.
 
 
Deceased Diver Part of 4 Person Dive Team
 
The deceased diver, David Scheinost, 24, was part of a four-person dive team from the DNR Aquatic Resources Division that was collecting geoduck samples to test for paralytic shellfish poisoning from the Manzanita and Restoration Point geoduck harvest tracts off Bainbridge Island on July 24.
 
As the day unfolded, a pair of SCUBA (self-contained underwater breathing apparatus) divers had deployed on their third dive of the day when Scheinost came to the surface in distress, calling out that he couldn’t breathe. The others were unable to reach him before he went beneath the surface and was gone. His body was found three days later.
 
 
L&I Investigation Points Out Problems
 
The L&I investigation involving the dive-safety policies and practices at DNR discovered:
 
             370 occurrences over a six-month period in which divers were deployed without carrying a reserve breathing-gas supply.
             DNR did not ensure a designated person was in charge at the dive location to supervise all aspects of the diving operation affecting the health and safety of the divers.
 
L&I Says ‘Willful’ Violations Took Place
 
As L&I concluded, these were “willful” violations, which means they were committed with intentional disregard or plain indifference to worker safety and health regulations.
 
“Commercial diving involves risks that unfortunately lead too often to tragedies like this incident,” stated Anne Soiza, assistant director of L&I’s Division of Occupational Safety and Health. “These significant risk factors require advance planning, properly maintained equipment and strict adherence to procedures to ensure the protection of workers’ lives on each and every dive.”
 
Along with the pair of willful violations, L&I cited DNR for eight “serious” and five “general” violations for not complying with standard safe-diving practices and procedures, including failure to:
 
             Have effective accident prevention and training programs.
             Ensure that divers maintained continual visual contact with each other.
             Inspect and maintain equipment.
             Have a stand-by diver available while divers are in the water.
 
L&I is responsible for workplace safety and health and investigating workplace deaths for all private, state and local government worksites.
 
 
Provided With 15 Working Days to Appeal Citation.
 
As with any citation, penalty money paid is put in the workers compensation supplemental pension fund, assisting workers and loved ones of those who have died while working.
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

Medical and Risk Trends for 2013

 

Each new year brings talk and speculation about what will be the “next big thing” during that year — a new medical procedure; a new change in laws; or increases in disability and reserving. Some common themes popping up on blogs and in discussion threads are about medical procedures and distracted driving hazard effecting risk management.
 
1.   Aggressive Total/Partial Joint Replacement Surgeries
 
Hip and knee joint replacements are among the most commonly performed surgical procedures in the United States, according the Center for Disease Control and Prevention. Between 1996 and 2006, total hip replacements increased by one third and total knee replacements by 70%.
 
Part of this new trend means doctors are finally realizing that months and months of physical therapy and other treatments are not resulting in outcomes patients’ desire. Injured people want to regain as nearly as possible most of their mobility and activity levels they enjoyed prior to an injury. This is particularly true of injuries taking years to develop before the joint finally gives out.
 
In addition, technology has changed, implants are better, more functional, and last longer and, depending on the comorbidities of the patient, recovery times have lessened. Therefore, physicians are going directly to joint replacement surgery, rather than waste a year on therapy.
 
Employers need to be aware of the actual causal relationship of joint failure to the issue of a workers compensation injury, keeping in mind most joint replacements are due to degenerative changes, not necessarily an occupational injury. The decision of whether or not an employer is liable for a workers comp claim can vary by state statute, meaning be very aware of all state statutes in every state where your company operates.
 
Rarely will a carrier opt to pick up a case with a joint replacement recommendation, since the costs are high, and the outcomes for total success can be limited. Be prepared to argue any case where a physician leans toward joint replacement following a workplace injury. Look for possible pre-existing conditions and be sure to have an independent medical examination (IME) done by a qualified and reputable physician.
 
 
2.   Increasingly Sophisticated Bionic Implants/Prosthetics
 
Great outcomes are rare for severe occupational injuries that include the loss of a limb since these cases are catastrophic in nature and carry a massive dollar reserve. The days of peg legs and hooks for hands are gone. Current prosthetics are capable of grasping objects with a mind/body connection doing the work, rather than plain mechanics.
 
Prosthetic limb advancements have grown exponentially over the years, but are very expensive. Prosthetic hands and arms are now like mini computers, with sophisticated wiring and performance. This leads to increased hazards and damage, wear and tear, and replacement/maintenance costs.
 
Some state statues only require replacement of a lost limb with a “suitable” prosthetic. But suitable to whom? Is it suitable to the claims adjuster, or suitable to the person affected by this life-changing injury? Unfortunately in many insurance claims, the best is not always something the carrier is prepared to pay for. The carrier’s opinion is to replace with a suitable device, a Ford Focus, not a Cadillac Escalade or Ferrari. So a lost limb can be replaced by the Ford Focus of limbs, not the Cadillac of prosthetic devices, or the latest/greatest thing out there.
 
Prosthetic eyes have also come a long way from the days when eye implants were riddled with infection potential and replacement eyes had little reality to what a natural eye looked like. Today’s eye prosthetics are incredibly life-like, although they do not replace vision. However, a good-looking prosthetic eye is a confidence builder and beneficial to a good appearance.
 
Be prepared to litigate over the issue of “type of replacement” and do not be surprised when it arrives after coverage for the Cadillac version of a prosthetic is disputed. Avoid legal problems by doing due diligence and get multiple opinions and recommendations for treatment as well as estimates on maintenance costs/repairs.
 
 
  1. Changing Demographics of the Workforce
 
Today businesses are doing more with less, leading to employees who are prone to more severe injuries with longer recovery times. Both the increase in obesity and aging adds to this statistic. It is not uncommon for workers compensation claims to increase when layoffs are rumored or forthcoming. Fear of losing a job may cause an employee to file a workers compensation claim over a minor injury and this spells disaster for the employer.
 
Employers must be aware of the risk. Every employer wants to run an efficient business, but employees can be over loaded by being asked to do more with less. What is the general consensus on the work floor? Are workers hearing about pending layoffs and not telling their managers about a potential injury for fear of repercussion or termination? Are workers asked to do more than one job when coworkers are laid off and not replaced? Failure to address these important questions can be dangerous and costly in the end and counter-productive to efficient management.
 
 
  1. Better Recovery that Limits Risk of Permanent Partial Impairment
 
Injuries reported and treated before they morph into major injuries result in reduced recovery time. Reduced recovery time lessens the risk of a permanent injury. In states where an impairment rating is used to pay the claimant additional monies, just opening the lines of communication can save a business/carrier a large sum of money over time.
 
Let us look at carpal tunnel as an example of early treatment as opposed to late treatment.
When a worker is treated at the onset of symptoms, treatment consists of splinting and medication. The problem can resolve on its own with little loss of work time and minimal medical cost. On the other hand, the longer a worker waits to get treatment, the worse the nerves become damaged, sometimes to the point where surgery will be of little benefit to resolve pain and restore function.
 
Some states have an almost automatic impairment rating once surgery is performed and costs can be very large not only in additional wage loss, but also in increased medical coverage. Some states cover reasonable, related, and necessary medical costs over a 10-year period, meaning it is hard to wipe an existing claim of this nature off the financial books. Promote early involvement/medical intervention when an injury happens in the workplace.
 
 
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.  

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

Mining Inspectors Zero In On Workplace Safety

 

Mining inspectors in Ontario are focusing in on diesel emissions and other hazards that could affect air quality during a blitz in underground mines.
 
As part of the province’s Safe at Work Ontario strategy, which was unveiled four and a half years ago, Ministry of Labor inspectors are making sure that employers are complying with recent changes to emission requirements for diesel-powered equipment under the Regulations for Mines and Mining Plants.
 
Officials believe the changes improve protection for workers from the potentially harmful effects of diesel emissions by:
 
     Setting a lower allowed limit of carbon exposure for workers and
     Requiring equipment be tested under consistent conditions
 
The changes went into effect on Jan. 1, 2012.
 
 
Illness and Death Result from Poor Air Quality
 
Poor air quality in underground mines can lead to occupational illness and death of workers. In particular, workers are at risk in the event they are exposed to carbon monoxide in diesel exhaust.
 
Underground mines can have poor air quality when:
 
     There are too many "particulate particles" (a mixture of various chemical solids and gasses including carbon and nitrous oxide) and other airborne substances such as dust in the air and/or when
     Fumes emitted by diesel-powered equipment are over the prescribed limits
 
To protect workers, the new amendments require employers to:
 
     Perform routine testing to determine the carbon monoxide content of exhaust from diesel-powered equipment under consistent conditions
     Develop and implement testing measures and procedures for diesel-powered equipment, in consultation with the mine's Joint Health and Safety Committee (JHSC) or health and safety representative
     Provide test results, as required, to the JHSC or health and safety representative
     Investigate overexposure by workers to diesel emissions and take remedial action, if possible, to prevent future incidents
 
The mining regulations are part of Ontario's Occupational Health and Safety Act (OHSA).
 
 
Inspectors Focus in on Diesel Equipment
 
Inspectors will target underground mines that use diesel equipment, including:
 
     Mines with large fleets of diesel equipment operating in the underground environment
     Recently reopened or new mines operating diesel equipment
     Mines where previous ventilation concerns were observed, and
     Mines with a poor health and safety compliance history
 
Inspectors will check on two types of equipment:
 
     Diesel equipment used for underground transportation of workers and materials and blasting of rock and
     Ventilation systems used to deliver fresh air to underground mines
 
Lastly, mining inspectors will zero in on the top priorities:
 
Committee Consultation: Inspectors will check that employers have developed and implemented testing measures and procedures for each piece of diesel equipment, in consultation with the JHSC or health and safety representative.
 
Diesel Equipment: Inspectors will check that equipment used for underground transportation of workers and materials is being regularly tested, as required.
 
Workplace Air Sampling: Inspectors will check that employers are regularly testing the air in underground mines to ensure exposure to toxic airborne substances do not exceed the prescribed limits.
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

What to Look For in a Structured Settlement Company

 

The use of structured settlements in large and catastrophic workers’ compensation claims is well recognized as a way to reduce the overall settlement cost while at the same time providing the injured employee with a fair claim settlement.  However, a factor often overlooked in structured settlements is the identification and selection of the best structured settlement company.

 

There are several characteristics and qualities that should be considered in the selection of the structured settlement company.  They are:

 

  1. Experience.

You want a structured settlement company that has a track record.  A structured settlement company that has been around for decades has more resources to draw from then a structured settlement company that has been in business for a few months.  The more structured settlements the company has completed in the past, the greater likelihood that they know how to deal with every possible scenario that could interrupt or prevent a structured settlement from occurring.

 

 

  1. Ability to Design Settlements.

The structured settlement company must have the ability to taken into consideration the needs of everyone including the injured employee and employee’s family, the attorney for the employee, the employer and the employer’s workers’ compensation insurer.  The structured settlement has to be designed to be flexible to address the needs of the employee while maintaining control of the settlement cost for the insurer.

 

The structured settlement company consultant must have an in-depth knowledge of sophisticated damage analysis and life care plans, along with the different types of trusts that can be included in a structured settlement.  By understanding the injured employee’s future financial needs and future medical care, the structured settlement consultant can design a creative solution that benefits all parties involved in the workers’ compensation claim.

 

 

  1. Resources.

A structured settlement is basically an annuity (or annuities) purchased from a life insurance company.  It is therefore essential for the structured settlement company to have several top rated life insurance companies available to provide the annuity/annuities.  By having several highly rated insurance companies available, the consultant can shop the settlement package with the different insurers to obtain the lowest overall cost for the structured settlement.

 

 

  1. Reputation.

There are structured settlement companies that work only with the plaintiff attorneys and there are structured settlement companies that specialize in working only with the defense attorneys.  These companies are well known to both the sides of the legal aisle, and are often mistrusted by the other side.  A structured settlement company that works with both plaintiff attorneys and defense attorneys must maintain a reputation of being unbiased and fair in all their dealings.  By selecting a structured settlement company that has the trust and extensive experience working with both sides of the legal aisle, the mistrust that hampers and prevents some structured settlements from occurring is removed.

 

 

  1. Geographical spread.

The structured settlement company should be somewhat local.  If the structured settlement company has only one office or even several offices in another part of the country, it is difficult for the structured settlement consultant to meet with the various parties involved in the injury claim. An example – if the structured settlement company is located in Florida and the injured party is in California, the structured settlement company will be less effective.  The structured settlement company that has a complete geographical spread and can provide a local consultant whether the injured employee is in Maine, Hawaii or somewhere in between will be able to provide the best service.

 

The proper selection of the structured settlement company can have a significant impact on the cost of the structured settlement.  For assistance in identifying and locating the best possible structured settlement company, please contact us.

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.

 

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 


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

Safety Efforts Pay Off For Record Safest Year in 2012

 

It appears that the efforts to make Victoria (Australia) workplaces safer has paid off.
 
According to information from WorkCover, 2012 witnessed 18 people pass away while on the job in Victorian workplaces, that being seven less than the 25 who were killed in 2011. That figure for 2012 also equals the prior record low of 18 workplace fatalities in 2005.
 
 
7.77 People Injured for Every Million Hours Worked
 
The number of Victorians who were injured at work also dipped to a new low. Last year, 7.77 people were injured for every million hours worked, that in comparison to 7.9 people per million hours worked in 2011.
 
WorkCover Assistant Treasurer Gordon Rich-Phillips remarked that the improvement was a major achievement, maintaining the state’s track record of leading Australia in terms of workplace safety.
 
“In 2012 national data confirmed Victoria’s position as having the safest workplaces of any state or territory in Australia, and that’s a credit to employers, workers and the efforts of the WorkSafe team,” Rich-Phillips remarked. “Many things need to come together to achieve these sorts of outcomes – active engagement and support from employers and workers, practical assistance combined with inspection and enforcement activity by the VWA and a commitment to improved workplace safety.”
 
 
Victorian Workplace Deaths Nearly Halve in Last Decade
 
According to Rich-Phillips, fatalities in Victorian workplaces had almost halved over the past decade.
 
“However, it is clear that more can be done, as many of the fatalities and injuries resulted from known hazards, with known safety solutions,” Rich-Phillips said. “Eighteen families had a sad and distressing 2012 because a family member failed to return home safely. The impact of a workplace death is also enormous on colleagues and employers, which is why we ask everyone returning to work to make safety their number one priority this year.”
 
Of the 18 deaths in 2012, 12 were in Melbourne and six were in regional Victoria. Sixteen of the fatalities were turned out to be males, one was an elderly woman and one was a four-year-old. Half of the deaths involved men aged 50 and over.
 
“Employers can improve safety and reduce injuries by making sure people are trained and supervised, that they have the right equipment to safely carry out a job and that machines are properly guarded,” Rich-Phillips said. “Workers can also improve safety in the workplace by taking responsibility for their actions. A shortcut might seem like a good idea but it’s often a shortcut to a serious injury.”
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

Ergonomic Concerns With An Aging Workforce

There has been a lot of industry talk about the risk of an aging workforce and how this can affect your workers compensation program. A main risk is how ergonomics plays into injury prevention, not only for an aging worker but for all workers.

 

Here are several ergonomic issues, and ways to try to trim your exposure:

 

 

Why should employers be concerned about this issue?

 

I recently read in the paper where it is projected that 50% of workers expect to work into their 70s, some into their 80s, and some plan to never retire! The reasons for such a statement would vary per the individual needs of the person, so it is hard to say exactly why this phenomenon is occurring.

 

Truly there are a number of different factors all combined into why this is happening, I do not think it is solely due to financial needs, or solely due to people just liking to work and be out of the house, on so on. The reality is that it seems there are older workers out there who just are not removing themselves from the workforce. Whether or not this will change in the future is unknown, but the current trend is that workers are not in a hurry to retire.

 

 

 

What are the risk factors?

 

Ergonomics are intended to maximize worker productivity while minimizing fatigue and discomfort. When work stations are designed based on production demand and not on the human element, the result will be increased injury. Worker injury exposure should look at the overall ability of the worker performing the job. It could loosely be said that a 75 year old worker cannot perform as quick nor have the physical stamina of a 25 year old worker. But, you have to take into account worker experience, motivation to perform at a high capacity, overall occupational education, and so on. This would be the human factor of a particular job. Job station risks would include repetitive motion, awkward postures such as bending/stooping and overreaching for items are all ergonomic workstation factors.

 

When a worker is manually handling heavy objects, it forces the body to comply and this can cause injury. An aging workforce most likely cannot continue to meet strict production demands that stress the body at a high capacity without experiencing injury at some point.

 

 

 

How can I reduce the risk?

 

The best thing for employers to do is to contact ergonomists and/or risk control professionals for their expertise on how to control and reduce the risk of ergonomically related claims. Many insurance carriers have adequately trained risk professionals that can help, or they can refer you to an outside vendor for further expertise.

Employers can also start to look at work duties and tasks for all of their employees. They should bear in mind necessary accommodations for an aging worker in a high demand, fast-paced work station.

 

Employers can also use loss run data to look for injury trends in order to pinpoint a particular task that could be increasing injury risk. As well as accommodate the needs of older workers by providing increased breaks, job rotations, sitting options, etc.

 

 

Any other ideas that will help out?

 

Depending on the work demand, a key topic that is having proper footwear and using correct body mechanics when handling materials.

 

Workplace footwear should be slip-resistant and designed for standing on concrete or other hard surfaces for long periods of time within the work environment. Anti-fatigue mats used with the correct footwear reduces pain and fatigue to the back and lower extremities, thereby reducing some injury exposure.

 

Establishing proper body mechanics defined by job description help not only an aging workforce, but all employees, on how to properly handle materials with minimal impact to the vulnerable areas of the body.

 

 

Summary

 

The increased presence of an aging workforce presents new exposure to an employer that was not as prevalent in the past. It is important to be proactive, and to become involved in the injury exposure in order to reduce your risk. Talk with your vendors or your carrier about what options you have for reducing your exposure.

 

 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 


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

Construction Sites Targeted That Put Workers At Risk

 

Focusing on the importance of workplace safety for construction companies, officials in New Zealand are making a concerted effort to see to it that 2013 is a safer year in this industry.
 
According to information from the Ministry of Business, Innovation and Employment, its inspectors passed out more than 1,000 notices and written warnings to construction companies performing work at height unsafely nationwide a year ago.
 
In an effort to protect workers, inspectors a year ago assessed more than 1,600 construction sites tied to the Preventing Falls from Height project, which seeks to lessen injuries and fatalities caused by falls in the construction sector. The project is continuing over the next 12 months, with construction workers being urged to make safety a priority in the New Year.
 
 
Sites Targeted That Put Workers at Risk
 
“The Ministry will continue to target sites that carry out work at height unsafely and those companies that put their workers at risk,” stated Francois Barton, the Ministry’s Southern Division general manager. We want to see enforcement figures improving in 2013 – safe work at height should be standard practice in the industry.
 
“Despite the high number of notices and warnings issued last year, it has been very positive to see some construction companies using innovative solutions to ensure their staff are safe while working at height. Companies are using adaptive scaffolding systems, mobile stair systems instead of ladders, and soft landing systems to stop workers getting hurt from falling off the top plate.”
 
Barton added that a sizable number of these solutions are also increasing productivity by bettering access for builders and the tradespeople that work alongside them.
 
 
Hundreds of Construction Workers Injured Every Year
 
Builders, roofers, electrical workers, painters and decorators are most apt to fall from height and get seriously hurt while they are working, according to officials.
 
“Tradespeople are going back to work after a few weeks off, so now is the time for a renewed focus on safety issues,” Barton remarked.
 
Hundreds of construction workers are injured on building sites every year – these accidents are preventable if precautions are in place. Workers must make safety a priority, especially during summer when there is an overall increase in workplace injury, according to Barton.
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

The Best Tidbits of News From The Workers Comp Community

 

 
While there have been no formal updates to the CMS website, the WCRC recently provided an update to Gould & Lamb that it will have all remaining cases that were not part of the previous streamlined process resolved by February 28, 2013, or will provide the specific information that is necessary for the approval process to be completed. Read more…
 
 
 
From skiing injuries to sniffles, there’s no season like winter for thinking fond thoughts of the American health care system. And there’s no time like exactly one billing period later for screaming curses at the American health care system.
With the Affordable Care Act here to stay and its changes already in motion, we present this week’s Cavalcade of Risk: articles on health insurance and its impact on our lives and economy.  Read more…
 
 
Lexis Nexis News:
 
 
"Larson's May Help Interpret Law, But Can't Supplant Text of Statute, by Thomas A. Robinson. Larson's Workers' Compensation Law is often used by federal and state courts to explain and interpret a workers' compensation statute, particularly when that statute is ambiguous. In a recent decision, the Kansas Supreme Court indicated that although consulting the Larson treatise is in order when the statute is unclear, it may not serve to supplant or alter the actual text of a statute. Read more about this case and other cases on Credit for Pension Benefits, Intentional Tort, and Substantially Certain Rule."
 
 
 
"Strong Association Exists Between AMA Guides Impairment Ratings and Earnings Losses, But Losses Vary Significantly Across Body Regions, by  Robert G. Rassp, Esq. & Robin E. Kobayashi, J.D. A new major study funded by CHSWC focuses on the AMA Guides Fifth Edition in California but has implications for the AMA Guides Fourth and Sixth Editions used in other states. The study purports to quell the main criticism that the AMA Guides can only measure severity of impairmentand not disability. The study examines whether there is a strong association between AMA-based impairment ratings and earnings losses for workers' comp claimants with permanent disabilities, thereby indicating that impairment ratings accurately reflect the effect of impairments on the ability to work. The study also examines…Read more"
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com.  Contact: mstack@reduceyourworkerscomp.com.
 
©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

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