Articles Posted in Workers’ Compensation

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The summer heat is in full force and every year dozens of workers die and thousands more become ill while working in extreme heat and/or humid conditions.  The construction industry is the occupation that is the most affected by the summer heat accounting for more than 40% of heat-related worker deaths.  However, workers in every field are vulnerable to heat related illness, injury, or death.  In 2011, OSHA launched a Heat Illness Prevention campaign which educates employers and workers on the dangers of working in the heat.  OSHA, through training sessions, outreach events, informational sessions, publications, social media messaging and media appearances have informed millions of workers and employers on how to protect from the extreme heat on the job.  OSHA’s safety message comes down to 3 key words: Water. Rest. Shade.

The reason the heat is so dangerous to workers is because when you’re working in a hot environment, the body must work harder than normal to get rid of the excess heat to maintain a stable internal temperature. This is mainly done through circulating blood to the skin and through sweating.  If the fluids and salts that are lost are not adequately replaced it results in dehydration.  If the body is unable to remove the excess heat, it will be forced to store it. If the body starts storing heat it will raise the body’s core temperature and the heart rate will increase.   The worker will then begin to lose concentration, have difficulty focusing on the work, and may become irritable or sick.  The next stage will often be fainting and even death if the person is does not cool down.170627-F-LR947-1022

Dangers of Working in the Heat

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In a recent decision the Pennsylvania Supreme Court found that the use of American Medical Association guidelines to determine whether an injured employee is partially or totally disabled violates the Pennsylvania Constitution. The decision ends a practice that had been in place since the Workers’ Compensation Act became law over 20 years ago.

Since becoming law in 1996, the Workers’ Compensation Act allowed employers to require an injured employee receiving workers’ compensation benefits to have an “Impairment-Rating Evaluation” (IRE) by a doctor. Doctors doing IREs were required to use AMA guidelines to determine the amount the employee is impaired. Impairment ratings were from 0% to 100%, with 0% being entirely unaffected by the injury and 100% being affected to the point of being unable to work.  If the employee was found to have an impairment rating of less than 50%, their employer could request to have the employee’s disability status changed from total to partial, reducing the duration of workers’ compensation benefits to no more than 500 weeks.

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Employees of Advanced Oilfield Services L.L.C., Bimbo Bakeries USA Inc., and Wizzard Drain Cleaning L.L.C. have claimed that the companies failed to pay for overtime wages for workers. Employers failing to pay proper wages for hours worked is common. In 2015, nearly 9,000 claims were brought against employers for wage and hour related issues.

Under Pennsylvania law, employers are required to pay most employees overtime or “time-and-a-half” wages for any hours worked over 40 hours a week. For example, if you make the Pennsylvania state minimum wage of $7.25 an hour and qualify for overtime pay, you would earn $10.88 an hour for every hour you work over 40 hours a week. Certain workers are not covered by Pennsylvania laws and Federal laws regarding overtime pay based on their job duties. This means that an employer is not required to pay workers that perform certain duties extra wages for time worked over 40 hours a week.

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Employers may use different ways to prevent paying overtime wages you are owed. Employers may classify an employee as an Independent Contractor or an “Exempt” Salaried employee. Employers may even offer to shift time between weeks. For example, if you worked 60 hours one week, an employer might allow you to work 20 hours the next. These kinds of shifting time schemes are often illegal.

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On June 27, 2017, OSHA decided to temporarily exempt construction companies and shipyards from a recently adopted rule covering exposure to the substance beryllium.

Beryllium is a naturally occurring, lightweight metal that is commonBeryllium-300x300ly used to make a wide range of products, from airplane parts to computer components and dental equipment. While the metal itself is largely safe, airborne beryllium particles have been found to be dangerous to humans. Prolonged exposure to beryllium particles can lead to chronic beryllium disease (or CBD), which results in scarring and reduced functionality of the lungs. Chronic beryllium disease is estimated to kill 100 people annually.

The rule, which was finalized on January 6th, 2017, decreased the permissible exposure level for beryllium to 0.2 micrograms per cubic meter and required workers to undergo regular medical monitoring.

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The National Safety Council conducted an employee perception survey that found 58% of Americans working in construction (the industry that sees the most workplace fatalities each year) feel that safety takes a backseat to productivity and completing job tasks. Further, 51% say management does only the minimum required by law to keep employees safe, and 47% say employees are afraid to report safety issues.

By contrast, 36% of the 2,000 full-time and part-time employees in the 14 industries surveyed by NSC feel their employers prioritize productivity over safety.

“Sadly the results of our survey indicate that many workers still worry about whether they will make it home safely tonight,” said Deborah A.P. Hersman, president and CEO of the National Safety Council. “We call on all employers to renew their commitment to keep everyone safe, on every job, each and every day.”

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On April 30, OSHA issued two new citations against Hultgren Construction. The company was renovating the former Copper Lounge building in Sioux Falls, SD when it collapsed on December 2.  The collapse of the historic building killed a construction worker and trapped an apartment resident under the wreckage for hours.

According to the OSHA citation, employees were tasked with removing two load-bearing walls but were not instructed how to install a temporary shoring system to transfer building loads. When the final segment of a load-bearing wall was removed, the building collapsed.  “The employer had employees and temporary employees engaged in the removal of a load bearing wall and piled the brick and debris in different areas of the floor without ensuring the safe carrying capacities of the floor were not exceeded,” one citation said.  The company was also cited for exposing employees to struck-by and crushing hazards and not performing an engineering survey prior to beginning demolition.

OSHA is proposing penalties of $101,400 for the new citations. That follows more than two dozen other citations and a $100,000 penalty issued against Hultgren Construction last week related to the construction site.  Command Center, a temporary labor agency that provided workers for the project, was also fined over $114,000 for more than a dozen citations, including failing to initiate and maintain a safety program.  The fines are among the largest ever levied in South Dakota by OSHA, according to the agency.

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The fines stem from a trench accident that killed two workers on October 21, 2016 in Boston, MA.

Atlantic Drain Service Co. employees Robert Higgins and Kelvin Mattocks were killed while working in a 12-foot-deep trench that collapsed and broke a fire hydrant supply line. The trench then filled with water within seconds.

OSHA investigation concluded that Atlantic Drain Service Co. did not provide basic trench safeguards against collapse and did not train the employees to recognize hazardous conditions.osha citations

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Falls at construction sites continue to be the leading cause of death for construction workers.  Around 37% of all construction worker deaths are from falls.  OSHA’s campaign is striving to raise awareness among workers and employers nationwide about the dangers of falls from heights on ladders, scaffolds and roofs.

On May 8-12, OSHA will hold its fourth annual National Fall Prevention Stand-Down. OSHA describes the event as “an opportunity for employers to have a conversation with employees about hazards, protective methods, and the company’s safety policies and goals.  It can also be an opportunity for employees to talk to management about fall hazards they see.”  Employers are encouraged to halt work and hold a “toolbox-talk” with employees about hazards and fall prevention.https://upload.wikimedia.org/wikipedia/commons/e/e1/Flickr_-_Official_U.S._Navy_Imagery_-_Construction_workers_assemble_bleachers_aboard_USS_Bataan..jpg

OSHA promotes a three step approach to prevent falls and save lives.  Those three steps are Plan, Provide, and Train. Employers should plan ahead to create a safe work environment.  They can do this by deciding how the job will be done, what tasks will be involved, and what safety equipment will be required to complete each task safely.  When determining what is needed to complete a job, employers should look not only at the materials needed but also the safety equipment needed to perform the task as safely as possible.  This is where the second step comes in which is to provide the right equipment.  Employers must provide fall protection and the right equipment for the job.  That includes proper ladders, scaffolds, and safety gear to protect their workers.  And the final step is to train.  It is not enough to have the proper safety equipment if it is not properly used by the worker.  Training in hazard recognition and proper use of safety equipment is essential to a safe construction site.

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The Wolf Administration, PennDOT, the Pennsylvania Turnpike Commission and the Association of Pennsylvania Constructors gathered this week in Harrisburg to kick off Work Zone Safety Awareness Week.

PennDOT data shows that 16 people were killed in work-zone crashes in 2016 which is down from 23 in 2015. However, there was an increase in work zone crashes this past year (2,075 in 2016 up from 1,935 in 2015). Over the last five years, work zone crashes have been occurring at an average of 1,872 a year. Those work zone crashes have also been responsible for around 20 fatalities a year.  This data includes both PennDot workers and non-workers.   When looking at just PennDot worker deaths alone, 87 PennDOT employees have died in the line of duty since 1970.

“Work zone safety continues to be a top priority of the department,” PennDOT Secretary Leslie S. Richards said. “We all hope to help change driver behavior and raise awareness so all of us, highway workers and motorists alike, get home safely every day.”

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On March 23, the United States Senate by a vote of 50-48 adopted H.J. Res 83.  This vote overturns OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally known as the “Volks” rule (named for a case involving Volks Constructors). The U.S. House of Representatives approved the resolution by a 231-191 at the beginning of this month. Congress was given the power to adopt these resolutions under the Congressional Review Act.  Under this Act, Congress may pass a resolution to prevent a federal agency (in this case OSHA) from implementing a rule.

Employers have long been required to maintain records of work-related injuries and illnesses for a 5 year period.  Under the original rule, OSHA was allowed to issue citations to employers for failing to adhere to these recordkeeping requirements if the violation(s) occurred within a 6 month period.  The recently overturned “Volks” rule (put in place by OSHA in January 2017) extended that time period to allow citations to be issued up to five and a half years after violations allegedly occurred.

Advocates of the “Volks” rule believe that ongoing recordkeeping is an essential part of implementing safe workplace standards and strategies by referring to the records of illnesses and injuries and taking steps to correct there causes.  The critics of the rule believe it was unnecessarily burdensome on employers and is a rule that only appears to be pro-safety on its face because it merely exposes information about injuries and illnesses and does nothing for improving safety within workplaces.