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Missouri Court of Appeals: Workers Can Sue Employers for Occupational Diseases AND Collect Workers’ Compensation

The first line on the Missouri Department of Labor’s Workers’ Compensation webpage reads: “The Missouri Division of Workers’ Compensation administers the programs providing services to all stake holders including workers who have been injured on the job or been exposed to occupational disease arising out of and in the course of employment.” However in 2005 when Missouri last updated its worker’s compensation laws, it failed to include the term occupational disease in the exclusive remedy section of the workers’ compensation statute. Thus opening a big can of worms for Missouri employers. In a recently published article written by Daniel Mehan, President and CEO of the Missouri Chamber of Commerce this “oversight” was highlighted as he noted that the Western District Court of Appeals ruled that workers’ compensation does NOT serve as the exclusive remedy for employees who may contract long-term, repeated exposure diseases. Transalation: Employees can sue their employers in civil court as an additional remedy to workers’ compensation. Both legal avenues are now seemingly concurrently open for employees in the state of Missouri. The court case that prompted this ruling involved Monroe Gunter (Monroe Gunter v. KCP&L Greater Missouri Operations Co., et al., Case No. 10CA-CV01079) who worked for KCP&L for thirty-four years before he retired in 1988. He was diagnosed with mesothelioma in February 2010. The court held that Gunter‘s claims were not subject to the exclusivity provisions of workers’ compensation because they did not arise out of an―accident as that term is defined in the statute. MISSOURI CHAMBER SAYS: UNCERTAINTY AHEAD “For decades employees who filed a worker’s compensation claim were precluded from filing a civil lawsuit against the employer for the same injury leading to the worker’s compensation claim. It apears this long-standing rule of law is now gone for long-term, repeat-exposure occupational diseases.” With Missouri’s Second injury fund already being frozen by Missouri Attorney General Chris Koster who stopped paying people who were granted permanent total disability awards by a judge, the opportunity for many of these cases to turn to civil courts for relief just opened up. Employers in Missouri should have alarm bells going off in their heads right now. If you, as an employer operate a facility that exposes or potentially exposes worker’s to chemicals or other agents that may cause long-term disease as a result of repeated exposures you may now be subject to civil litigation at the same time as being on the hook for worker’s compensation claims. Since the Missouri Attorney General’s office stopped settling cases against the fund in 2009, more than 30,000 cases are now pending and about 700 cases are filed each month waiting to be adjudicated. Not counting those cases, the fund’s estimated liability for awards already approved by judges is $1 billion. With Social Security Disability being the sole source of income for virtually all of the injured workers not being paid by the fund one can only guess at the number of people who will strongly consider remedies through civil action against their employers. LEGISLATIVE FIX NOT LIKELY ANYTIME SOON It is up to the Missouri legislature to resolve this issue. As the Court ruled “ The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law .”  As noted in Mehan’s article, the Missouri Legislature failed to address this issue: a remedy was blocked according to Mehan “through work of trial attorneys wanting more litigation against Missouri employers to garner more legal fees on the issue.”   Thus placing Missouri employers in the unenviable position of being required to pay for workers’ compensation insurance knowing that workers can now seek civil action against them as well as filing for workers’ compensation benefits. EMPLOYERS MUST PROVIDE A SAFE WORKING ENVIRONMENT As a Missouri Employer it is now an imperative that you do everything to protect yourself from this risk. Including reviewing and updating your industrial hygiene safety programs, ensuring that all of your workers are protected at all times from dangerous or potentially disease causing agents in the workplace. Performing job hazard analyses (JHAs) for each specific job function, especially those relating to chemical storage, use and disposal. Consulting with experienced professionals in industrial hygiene and safety is a must for those employers without in house expertise. Training your supervisors and front line managers to recognize potential hazards and to effectively communicate the risk associated with those hazards to your workers, so they will take the necessary precautions to protect themselves is critical to protecting your organization against potential claims in the future.

Who Needs Hazardous Materials Transportation Training?

If your employees are involved with hazardous materials, you must ensure that your employees receive appropriate training. This means ALL employees who meet DOT’s definition of “hazmat employees.” A hazmat employee is a person who is employed by a hazardous materials employer and “directly affects hazardous materials transportation safety. This is a broad definition, for example, an office assistant who types the required hazardous materials description on a shipping paper at the direction of another is a hazmat employee and must be trained, tested, and certified. Did you know that? If not, you may need to seek some advice from an experienced trainer who can help you with this complex regulatory issue. The regulations clearly intend that any individual who has any impact on the safety of hazmats in transportation is considered a hazmat employee who requires training and certification. HAZMAT EMPLOYER MUST train and test certify develop and retain records of current training (inclusive of preceding three years) for each hazmat employee (during the period of employment and 90 days thereafter) TRAINING MUST INCLUDE General awareness/familiarization Function-specific, training Safety Security awareness In-depth security training, if a security plan is required Driver training (for each hazmat employee who will operate a motor vehicle) RECURRING TRAINING Is required at least once every three years.  The three year period begins on the actual date of training. Relevant training received from a previous employer or other source may be used to satisfy the requirements, provided a current record of training is obtained from the previous employer or source (i.e., OSHA, EPA, and other Federal or international agencies.) Training must address components specified in 172.704(a) of the HMR to be considered applicable. Many training providers offer HAZMAT employee training online, however it is important to note that taking an online class may NOT satisfy the DOT’s training requrirements. That’s because many online training courses don’t offer function-specific training as required under the statute.  As an employer you may be unwittingly exposing yourself to potential regulatory fines and citations due to the easy access of cheap online training providers who are all too eager to collect fees without necessarily providing all the elements to regulatory compliance training program. As an employer you need to ask the tough questions of your training provider and don’t take their answer at face value if it seems ‘to good to be true’.   Review all of DOT’s training requirements , before you check this training off your “to do” list.  

Public Sector Injury Rates Continue to be Significantly Higher than Private Sector in 2010

The Department of Labor announced last week that nonfatal workplace injuries and illnesses among private industry employers declined in 2010 to a rate of 3.5 cases per 100 equivalent full-time workers, down from a rate of 3.6 in 2009.  Manufacturing was the sole private industry sector to experience an increase in the incidence rate of injuries and illnesses in 2010—rising to 4.4 cases per 100 full-time workers from 4.3 cases the year earlier. More than one-half of the 3.1 million private industry injury and illness cases reported nationally in 2010 were of a more serious nature that involved days away from work, job transfer, or restriction—commonly referred to as DART cases. These cases occurred at a rate of 1.8 cases per 100 full-time worker. State and local government workers Nonfatal workplace injuries and illnesses among state and local government workers continue to be dangerously higher than that of private sector workers at 5.7 cases per 100 full-time workers in 2010, relatively unchanged from 2009.   Which begs the question; Why is this happening, and why do we as a society continue to ignore this problem?   The  National public sector estimates cover approximately 18.4 million state and local government workers.   According to the Dept. of Labor report, nearly 80% of these injuries and illnesses reported in the public sector occurred among local government workers in 2010, resulting in an injury and illness rate of 6.1 cases per 100 full-time workers—significantly higher than the 4.6 cases per 100 full-time workers in state government.

Advances in Tablets and Smartphones Drive Increase in Mobile Learning

Workforce trainers have incorporated technology in their classroom instruction for decades.  However now with cloud computing and the growth of smaller, more portable computers and Internet-capable Smartphones and Tablets, it’s now possible to bring their classroom to the technology. Future Workplace & IESE Business School M-Learning: From Anticipation To Reality By year end of 2011: nearly forty percent of executives plan to incorporate media tablets into learning and development initiative. Nearly 75% of these learning executives plan to incorporate smartphones by the end of this year. By 2015: Human Resource executives plan to leverage mobile devices not only for learning & performance support but also for coaching and mentoring employees. Five Barriers to Implementation Cost of developing content across all types of mobile devices and platforms. Security of issues associated with mobile devices Non-clarity on how to participate in mobile learning Out-dated IT policies Lagging instructional design expertise Internet is Everywhere There aren’t a lot of places these days that are devoid of an Internet connection, and many people can now access the web from anywhere they can get a cell phone signal.  Online collaborative learning is on the rise as a result.  Whether through blogging, podcasts, or more traditional online discussion forums, trainers and learners are experiencing a whole new world of opportunities. Now with the rise in popularity of Tablets; they too are finding a home in both the traditional and the virtual classrooms.  Like many Smartphones, Tablets have touch capabilities built into the screen.  Learners can touch the screen on Tablets to manipulate, interact and share content with one another inside and outside the classroom, which can foster an interactive environment.   Tablets are more than an interactive tool; they can also save time.   Instead of spending hours transcribing classroom records and scores;  trainers can simply mark papers electronically and then transfer the scores directly into their Learning Management System (LMS). mLearning implementation The actual implementation of mLearning is growing faster in some sectors more than others.  According to eLearning Guild research data collected from members worldwide, the use of mLearning for social networking and communication is currently more prevalent than it is for the development of custom applications, with 38.1% of organizations either implementing, designing, or building the business case for social networking and only 25.7% for custom application development.   However of those who have already conducted an mLearning implementation, 50% are seeing positive returns.

OSHA back-peddles on guidance on aerial work platform fall protection

According to a recent article published by the  KHL Group ,  OSHA has rescinded its January 2009 letter of interpretation #20070823-7896 on the use of shock absorbing lanyards in aerial work platforms (AWP).  The 2009 letter of interpretation had created uncertainty in the industry by suggesting that a manufacturer’s requirement for a minimum anchorage point elevation of 18.5 feet would prevent the use of a fall protection system (6-foot lanyard with shock absorber, full body harness) in an aerial lift. This question was previously put to OSHA due to concerns that at times the distance between the platform and the ground would be less than 18.5 feet. The  OSHA Directorate of Construction (DOC)  has now rescinded the above letter of interpretation in an August 2011 memorandum to its regional administrators.  ”OSHA did not ban the particular lanyard but stated, based on the manufacturer’s instructions, which stipulated a minimum anchor point height of 18.5 feet, that it was likely that the lanyard’s use would not comply with OSHA standards at lower height. In such cases, use of the lanyard below 18.5 feet would apparently not provide adequate fall protection. This determination has raised questions about the use of body harnesses, typically married to appropriate lanyards, for fall protection in aerial lifts. To help avoid any confusion on the issue, DOC is rescinding the January 2009 letter.” “In rescinding this letter, OSHA is not concluding that the application described above is acceptable, rather it is clarifying that fall protection systems should not be based solely on information provided by the manufacturer, but should also take into account OSHA regulations and results of the job-specific risk assessment.,” said Tony Groat with IPAF. “IPAF believes that the primary choice for fall protection should be a restraint system, which stops the fall in the first instance.” For more information on fall protection while using aerial lifts go to:  The International Powered Access Federation (IPAF)  website.   http://www.ipaf.org  or  http://www.awpt.org

Missouri Dept. of Transportation wins Safety Award

I happy to report that one of OCCU-TEC’s long standing clients has won a safety award; the Missouri Department of Transportation (MoDOT) was recognized recently by the Governor’s Highway Safety Association for its work to save lives on Missouri highways.   MoDOT received the Peter K. O’Rourke Special Achievement Award for spearheading a statewide safety coalition that has helped the state realize a decrease in traffic fatalities and disabling injuries for the past five years.   The award also recognized the state for reaching its goal of 850 or fewer roadway fatalities two years early. Congratulations goes out to all our friends and everyone at MoDOT who have worked very hard on increasing safety awareness and reducing both worker injuries and public roadway accidents. You can get more information on MoDOT’s safety iniatives here:   savemolives

NIOSH and OSHA release “Nail Gun Safety: A Guide for Construction Contractors”

According to the newly released guidance on nail gun safety by NIOSH and OSHA; Nail gun injuries are so common that two out of five residential carpenter apprentices experienced a nail gun injury over a four-year period. The guidance document is primarily for residential home builders and construction contractors, subcontractors, and supervisors. According to the document; NIOSH and OSHA developed it to give construction employers the information they need to prevent nail gun injuries. The guidance document covers nailers used for fastening wood, shingles, and siding materials, it also refers specifically to pneumatic tools but also applies to nail guns that use gas, electric, or hybrid power sources. It is a well constructed guide book that will provide some basic safety tips for use of nailers. It is my hope that someone actually reads it besides us safety professionals! You can find it at: http://www.osha.gov/Publications/NailgunFinal_508_02_optimized.pdf

EPA Gets Conviction on Asbestos Training Scam

“Today, justice was served, and Albania Deleon has finally faced the consequences of her crimes…” EPA has announced that the former owner of the country’s largest asbestos abatement training school was sentenced to prison, after having fled the United States after her trial in November 2008. U.S. District Judge Nathaniel M. Gorton sentenced Albania Deleon, 41, formerly of Andover, Mass., to 87 months in prison to be followed by 3 years of supervised release. She was also ordered to pay more than $1.2 million in restitution to the Internal Revenue Service and $369,015 to AIM Mutual Insurance Company. According to the EPA, Deleon who owned and operated Environmental Compliance Training (ECT), a certified asbestos training school located in Methuen, MA, offered training courses on a weekly basis at her Methuen offices, however, many of the recipients of the certificates never took the required course. Instead, with Deleon’s knowledge and approval, ECT’s office employees issued certificates of course completion to thousands of individuals who did not take the course. These individuals filed the certificates with the Massachusetts Division of Occupational Safety in order to be authorized to work in the asbestos removal industry. According to Court documents many of the recipients were illegal aliens who wished to skip the 4-daylong course so that they would not forego a week’s pay.  Of course as already noted by others the losers in this scam were the workers who were not knowledgeable of the hazards of asbestos exposure and didn’t know how to protect themselves from unnecessary exposure in the work place.  In return for not losing one weeks pay they may face an even more uncertain future…one filled with asbestos related illnesses.  Their quality of life may be significantly altered and so to their family’s! Some have contended that many of the untrained workers were hired by another firm Deleon owned and assigned to perform asbestos abatement and demolition, which makes this scam even worse for the customers and clients of this scam.  Their project may not have been handled within the rules and laws set out to protect them and the public from the dangers of asbestos removal projects. From 2001 to 2006 ECT issued training certificates to over 2,000 untrained individuals.  According to the EPA Press Release, “Today’s sentence marks the final chapter in bringing Albania Deleon to justice,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “Committing environmental crimes to make a profit that put workers and our communities at risk carry serious consequences.” Deleon is the fifth environmental criminal captured since the EPA fugitive website was launched in December 2008.

OSHA CELEBRATES 40 YEARS OF SAFETY

Throughout 2011, OSHA is presenting a series of materials and activities to celebrate the agency’s 40th anniversary. Visit the  OSHA at 40 Web page for resources including a short video using old and new footage to highlight key moments in the agency’s history, an interactive timeline and a commemoration of the 1911 Triangle shirtwaist factory fire . The page also links to an anniversary message from OSHA Assistant Secretary David Michaels as well as a video of his participation in a panel discussion on the nation’s progress in worker safety and health over the past forty years and the challenges that lie ahead.

10 Interesting Health and Safety Facts

10 Interesting Health and Safety Facts About 3.9 million employees are disabled at work in any given year. One work related injury occurs every 8 seconds. Accidental overdose of iron pills is the leading cause of poisoning deaths among children. Fire kills more Americans each year than ALL other natural disasters combined. Nature requires over 5 years to get rid of a cigarette butt. The energy needed to make 1 new aluminum can makes 20 recycled ones. About 8 out of every 10 adults will have a back injury in their lives. On average about 400 people die from excess heat (heat stroke) each year. Occupational skin diseases costs $1 billion annually in worker comp costs claims. Of the 42,000 traffic fatalities in recent years, 41% were alcohol related.