A worker at a Sussex manufacturing plant has suffered an injury, which OSHA has determined that were due to safety failures. The worker, who was 30 years old, had three fingers severed at the Nature’s Path Foods Incorporated subsidiary plant as he was cleaning the machine. Goldberg Weisman Cairo understands that the rotating airlock blade caused significant injuries, but safety investigators have determined that fully powering down the machine would have prevented this.
A History of Safety Failures
According to OSHA, there is a history of safety failures for this company. The company was cited for the similar violations back in 2012. In May, OSHA had cited the facility for 14 serious in addition to the two repeated safety violations. There was also one violation that was less than severe determined after the investigation for the November 2015 injury. It has been proposed that the company pay over $118,000 in penalty charges.
Nature’s Path USA II was found to have numerous safety failures. These include failing to develop a confined entry procedure, powering down or lockdown equipment in order to prevent operation unintentionally, conduct regular inspections, develop rescue or emergency service summoning systems, install the proper machine guarding, train workers on chemical hazards, provide noise limit information and correct the electrical safety violations on the premises.
The OSHA Determination:
According to area director at Milwaukee OSHA, Christine Zortman, the training of workers to isolate power, as per the OSHA standards could have prevented any injury. This procedure would have prevented hands from having contact with the machine operating parts. Employees have a requirement that energy is locked out or properly guarded to prevent access to equipment danger zones.
Since January last year, OSHA requires employers report severe injuries in the workplace within 24 hours. Any workplace fatalities need to be reported within 8 hours. Nature’s Path Foods is a family owned company which produces USDA Certified NonGMO and Organic snack foods and breakfast cereals sold in over 50 countries. The company has four facilities in the U.S and Canada, employing hundreds of workers. The company has up to fifteen business days to comply with the penalties and citations, request an informal OSHA conference or contest the report findings before the review commission.
If you are in receipt of worker’s comp benefits, worker’s comp law firm, GWC advises that you need to be aware of how it can impact your social security disability payments. Some workers with eligibility for disability benefits could also have an eligibility for workers comp benefits for work-related injuries and illness. Unfortunately, workers cannot receive full social security benefits, and the full workers comp benefits simultaneously.
The Offset for Workers Comp Benefits:
In most cases, SSDI benefits are required to be reduced so that the monthly amount received is less than 80% of the sum earned when fully employed. To calculate this amount, Social Security initially determines the “applicable limit” which represents the total combined maximum benefits permitted under federal laws.
When money is received over the applicable limit in any month, Social Security offsets the SSDI to bring the total back to within the limit. Workers comp benefits offsetting SSDI is common in those who earned a lower income when working, as their applicable limits are less and more easy to exceed with SSDI and workers comp.
SSDI can also be offset in cases where a lump sum settlement has been received in favor of monthly compensation benefits.
Current average earnings are calculated as the highest of either the monthly average wage used to calculate SSDI benefit, monthly average earnings from the greatest five consecutive years or the average earnings in a single calendar year which was the highest in the previous five years.
In some cases and certain states, workers comp benefits can be offset to account for the SSDI. This reverse offsetting cannot be done when workers comp benefits are already offset. Additionally, reverse offsets may not apply to every form of workers comp. To date, fifteen states offer some type of reverse offset provisions, even though it may not apply to all workers compensation benefits.
If you are wondering whether you qualify for disability benefits, you should be aware that you may be awarded permanent or temporary benefit. Therefore, it is important that you understand the differences and how it can affect you. As the name suggests, temporary disability benefits are only awarded for a short period, which varies according to which state you live in. While Disability benefits can be offered through four sources; Social Security, Workers Comp, Private Insurance or State Government.
Social Security Disability Benefits:
Social Security does not award temporary disability benefits. In order to qualify, you need to be categorized as disabled for a minimum of one year or have an injury or illness that is expected to be fatal. Upon approval for this type of benefit, you will continue to receive the benefit until you reach full retirement age, pass away or your condition improves.
State Temporary Disability Insurance:
To date, only five states have a TDI or temporary disability insurance program. These are New York, California, Hawaii, Rhode Island and New Jersey. In these states, it is possible to be paid disability benefits if you are unable to work for less than one year.
Some insurers do provide short term insurance policies to cover disabilities. These policies typically cover a portion of your annual salary for as long as six months, to allow you to recover from an illness or accident. However, it is much more common to see LTD or long term disability policies offered by private insurers. These schemes are usually part of an employer group plan and require a 90 day waiting period in which you won’t receive any benefit. Some policies will pay benefit for the entire time you are disabled, while others are limited to a five or ten year period.
Workers comp pays temporary and permanent disability benefits. Temporary benefits are available for recovery from an injury and illness up to two years. When your medical professional has determined a plateau in your recovery, it is likely that your temporary benefits will be ended. However, at this point, any lingering symptoms affecting your ability to work could allow you to qualify for permanent disability benefits.
Chicago workers compensation lawyers are often asked about the scheme and whether their job is covered by workers compensation. There are a number of primary worker categories that are not covered with traditional workers comp. These include; volunteers, business owners, federal employees, independent contractors, longshoremen and railroad employees.
Elective Workers Compensation for Sole Proprietors, Partners and Business Owners:
Typically, in many states, these workers are not covered by workers compensation insurance. However, in some states, sole proprietors, partners and business owners can elect to be covered as employees for the purpose of workers comp.
Are not considered to be employees, so are not covered by workers compensation. This applies when volunteers complete charitable work for nonprofit companies, providing they are unpaid. However, the workers can receive lodging, transportation and food. There are exceptions to this, such as volunteer police officers and firefighters who are covered by workers compensation as they have been requested to assist in emergency situations.
Longshoremen, Railroad Employees, and Federal Employees:
These workers can receive benefits through several different systems rather than relying on state run programs.
Longshoremen have coverage under the Longshore and Harbor Workers Comp Act. This governs compensation for occupational diseases or injuries occurring on the piers and navigable waters of the United States.
Federal employees are covered by the FECA (Federal Employee Compensation Act). This includes occupational diseases and industrial injuries.
Railroad workers have coverage through the Federal Employers Liability Act or Railroad Worker Act. This permits those not covered by the state system to sue their employer for an industrial accident to recover lost wages, medical treatment or damages for pain and suffering.
Typically, independent contractors are not covered by the workers comp insurance of the person paying the contractors bill. However, an employee is covered by standard workers compensation. This makes a great distinction of whether the worker suffers an injury on the job. There is a point of contention about whether the worker is an independent contractor or employee. Some employers may try to classify a worker as an independent contractor in order to avoid paying workers compensation benefits.
The Department of Labor has now issued its final overtime exemption rule to raise the minimum salary threshold to qualify for the FLSA (Fair Labor Standards Act). This has raised the “white collar” exemption to $47,476 per year or $913 a week. The new salary testing will be applied to all professional, administrative, executive, computer, and outside sales employees, who are treated as salaried and exempt under the FLSA. The new rule will affect 4.2 million workers currently treated as exempt, but not satisfying the new FLSA salary test.
The New FLSA Rule:
The first version of this rule was proposed back in June 2015 and prompted 300,000 public comments to September 2015. The first version of the rule doubled the salary threshold to $50,440 a year or $970 a week from $23,660 a year. While the final rule still doubles the salary threshold, it reduced the proposed threshold by $3,000. The new rule will take effect December 1, 2016.
Under the previous regulations an employee needed to meet certain tests about their job duties and be paid a minimum of $23,660 a year on a salary basis in order to be exempt from the FLSA wage and overtime requirements. Although the DOL’s new rule does significantly raise the salary level, incentive payments, and nondiscretionary bonuses can count for up to 10%, providing the payments are made at least every quarter.
The overtime eligibility threshold has been increased to $134,004 from $100,000 a year for “highly compensated” workers.
The salary thresholds will be automatically adjusted every three years to maintain the 40th percentile benchmark.
Employers have several options to respond to the updated levels. For employees treated as exempt under the FLSA rules, who are paid below the $47,476 per year level, there are a number of employer options;
Increase employee salary to maintain exempt status
Convert to an hourly rate and pay overtime premiums for any hours worked above 40 per week.
Reduce, control or completely eliminate overtime hours.
Reduce the base salary pay allocation to account for overtime rate and hold the pay constant for the weekly salary.
Employers will need to analyze their workforce to determine which option or combination of options is best suited to their needs.
Chicago Workers Comp lawyers are often asked about the most common claims, and a recent report has highlighted the top five and their underlying causes. The Injury Impact Report by The Travelers Companies examined over 1.5 million workers comp claims to determine the most common claims from businesses of all sizes and various industries.
The Most Common Workers Comp Claims:
By far the most common workers comp claims were a result of sprains and strains. This group accounted for 30% of the examined claims. Punctures and cuts accounted for 19% of the claims and were the most frequent form of injury in small businesses. The most common injuries in manufacturing and construction were eye injuries, while contusions accounted for 12% of the claims. Both fractures and inflammation accounted for 5% of the claims. The highest average cost of injuries were typically dislocations, crushing, amputations, electric shocks, and multiple trauma injury, for example, breaking more than one bone in the incident. Severe injuries were typically less frequent.
The Causes of Workplace Injury:
The underlying causes of the Workers Comp claims were also examined in the report. The most frequent cause of injury in the workplace was material handling. This was the cause of injury in 32% of the claims. 16% of claims resulted from falls, slips, and trips, while colliding with or being struck by an object was listed for 10% of the claims. Tool accidents were responsible for 7% of the claims and prolonged trauma such as overuse or strain resulted in 4% of the claims.
In most cases of these incidents, the injuries were sprains, punctures, cuts, strains, inflammation, contusions or fractures. Sprains and strains resulted in an average 57 days of missed work, while punctures and cuts averaged 24 days. From the most common injuries, fractures and inflammation caused the most lost work days with 78 and 91 days respectively.
According to the second VP of Risk Control, Travelers, even a seemingly minor injury such as a sprain or strain can have a substantial impact on employees and business productivity. However, if safety measures are properly in place and any issues are promptly addressed these common injuries can often be prevented.
Workmans comp lawyers in Chicago are concerned with the unequal treatment, an inherent conflict of interest and barrier to benefits which will occur when employers opt out of Workers Comp. A new study has supported these concerns and highlights that limited independent oversight is just one of the dark possibilities of opting out.
The Workers Comp Report:
This workers comp report is the first independent assessment of Workers Comp opting out alternatives and was conducted by the IAIABC. The IAIABC focused their research on Oklahoma, where employers are permitted to opt out of state-mandated Workers Comp regulations and benefits by using their own workplace plans. The research team also examined the proposed legislation in South Carolina and Tennessee. According to the report, injured workers could benefit if employers act with the employees best interests in mind and voluntarily offer generous payments in the event of an injury. However, this is not the norm. With little to no federal or state oversight, there is a dark possibility that there will be minimal benefits and a dispute process which appears unfair to the claimant.
The Growing Debate:
The debate among insurers, employers, worker advocates and service providers has been growing in recent months. ProPublica and NPR have suggested that there is a race to bottom as employers are given increasing control over benefit decisions, and states reduce benefits. This has made it increasingly difficult for claimants to qualify for lost wages payments and medical care.
The provisions for opting out took effect in Oklahoma state law in 2014. These provisions gave employers the ability to create and administer their own workers benefit plans with little state oversight. Almost all of the opt-out plans have been analyzed by ProPublica and NPR and the organizations have found that most of the plans give employers greater control over medical treatment, while providing fewer employee benefits and leaving the appeal process in the employer’s hands.
The U.S Labor Department has been asked by ten Democrats in the U.S House and Senate to investigate opting out. However, Thomas Perez, Labor Secretary has called opting out injured worker’s “pathway to poverty.”
New federal regulations will allow a public reveal of workplace illness and injuries logged by employers. This information is typically only for private use, prompting business groups to protest the new regulations claiming data can be misconstrued and or exploited by plaintiffs’ lawyers and unions.
The New Rules:
The new rules are the outcome of a prolonged debate between businesses and workplace safety regulators. The two groups have been disagreeing about how much and what safety information should be available to both the government and the public. According to the Labor Department, approximately three million people are affected by workplace illness or injury each year. Regulators argue that transparency would help to reduce this number, but employer groups counter that sensitive information may be taken out of context and cause damage to company brands without creating any safety advantages.
According to Randy Johnson, U.S Chamber of Commerce senior VP of labor, the new rules will create new filing requirements which will allow sensitive data to be published without any explanation or context. It is argued that unions may use this data to organize campaigns and mischaracterize employers in frivolous lawsuits.
Improvements to Workplace Illness and Injury Figures:
Union groups could not disagree more. They have praised the new rules, saying that transparency will prevent the withholding of workplace illness and injury information from workers. This is thought to be particularly helpful to workers in nonunion companies who will be able to access important information without the fear of retaliation.
The new rules have been issued by OSHA and require that thousands of employers within high hazard industries electronically submit details of workplace illness and injuries to OSHA.
Although this information should have already been collected, in the past it may have only occasionally been seen by OSHA inspectors. Typically, most of this information would not be reported to the Labor Department Agency. With the new rule, OSHA will post this data online to create a readily available database of safety information in the workplace. The new requirements will be phased into action over the next two years, and OSHA has assured businesses that personally identifiable employee details will be omitted from the data posted online.
A recent study conducted by The Travelers Co documented that almost a third of all workers comp claims in the last five years were for workplace injuries that could trigger chronic pain issues. In cases such as these, Goldberg Weisman Cairo clients may be prescribed opioids to treat the injury, but the company hopes that faster recoveries could be achieved with less reliance on opioids with a new model. The report was based on approximately 1.5 million claims and included data on the most common causes of workplace injuries, preventative measures and the most costly injuries.
The Travelers Study:
The report was designed to provide data for the company’s partners, so it could be used to not only save money but reduce incidents and improve safety. According to Travelers senior communications specialist, Nicole Guzzardi, the company has produced the report to aid businesses in understanding where injuries are occurring and prompt them to investigate how workforce safety can be improved. Using this study, Travelers has created a model to predict when workplace injuries could lead to cases of chronic pain.
The Early Severity Predictor:
This model was applied to over 20,000 cases last year, and it identified over 9,000 cases that could potentially cause chronic pain. According to a company press release, these employees were provided with a regimen of treatment similar to sports medicine rather than painkillers. These employees were found to recover more quickly, and it was at a lower cost. Travelers’ national medical director, Adam Seidner says that there has been a significant rise in the number of cases where chronic pain interferes with the recovery of the employee. This figure has gone from approximately 10 percent, ten years ago to approximately half of the cases of serious workplace injuries today. Seidner says that helping employees to avoid chronic pain and the potential risk of dependency on opioids is critical to reversing the expensive health crisis. OSHA statistics show that American businesses are spending $170 billion per year for workplace injuries associated costs, with 3.7 million injury cases each year. Even minor injuries such as a sprain can cost an average of $17,000 a claim, so implementing preventative measures could help businesses to keep employees safe and cut costs.
One of the most common queries put to a Chicago workers compensation law firm is whether their condition is covered. While some injuries present with immediate symptoms from a one time incident, chronic illnesses can be a little more complex to determine. For example, Complex Regional Pain Syndrome is a chronic illness which can develop following a serious injury. Symptoms include pain in joints, back, hands, arms, legs or feet. While this condition is not considered life threatening, it can be frustrating as the condition can make it difficult for workers to return to their previous duties.
Complex Regional Pain Syndrome Causes:
Complex regional pain syndrome or reflex sympathetic dystrophy is caused by damage to or a malfunction of the peripheral nervous system. This includes the brain, nervous system or spine.
While the precise cause is not known, the condition can be triggered by abnormal excitement or irritation of the nervous system. This can be a result of surgery or an injury. The origin could be attributed to heart disease, broken or fractured bones, degenerative arthritis, nerve irritation, stroke, sprains or serious surgical procedures. These injuries can be caused by trips or slips in the workplace, vehicle accidents or other job related incidents.
Diagnosing the Condition:
There are a number of indications that workers may be affected by Complex Regional Pain Syndrome. You may find that temperature, sensitivity or skin color change around the injury site, along with chronic pain. One or more of these symptoms may suggest that the worker has developed the condition. Unfortunately, if the condition is not promptly treated the symptoms and level of pain could worsen over time.
In order to diagnose, a doctor will review your medical history, perform diagnostic tests and examine your physical condition. Without background information or training, it is often challenging to correctly identify the condition. Sufferers of complex regional pain syndrome resulting from a workplace injury may be entitled to benefits under the workers compensation program. However, proving the condition can be challenging, so it is important that you seek specialist advice.