International Society Of Workers Compensation Specialists

As you will soon learn, your OSHA log is a very important document and must be kept for a log period of time.

According to OSHA your organization must save the OSHA 300 Log, and Annual Summary, and the OSHA 301 Incident Report forms for five years following the end of the calendar year that these records cover. This requirement exists even if there is a merger or acquisition.

In addition, you are also required to maintain and change previous OSHA records as changes occur. For example, let’s assume that during the 5-year retention period there is a change in the outcome of a worker injury or illness that affects an entry on a previous year's log for that injury. In this case the first entry should be lined out and a corrected entry made on that log. Also, new entries should be made for previously unrecorded cases that are discovered or for cases that initially weren't recorded but were found to be recordable after the end of the year in which the case occurred. The entire entry should be lined out for recorded cases that are later found non-recordable.

Also, if you maintain medical records you must preserve and maintain them for each for each employee. OSHA does not mandate the form, manner, or process for preserving a record except that chest X-ray films must be preserved in their original state. But what is critical to know is that medical records should to be kept for at least the duration of employment plus 30 years. Background data for exposure records such as laboratory reports and work sheets need be kept only for 1 year. Records of employees who have worked for less than 1 year need not be retained after employment, but the employer must provide these records to the employee upon termination of employment. First-aid records of one-time treatment need not be retained for any specified period.

The International Society Of Workers Compensation Specialists, in its Certified Injury Prevention Specialists program, provides superior training and on-line, on-demand host of resources to understand and comply with OSHA’s injury recordkeeping requirements. These resources also include the formalization of your safety team, injury prevention, OSHA compliance, safety training, prompt injury response, workers compensation disability management, plus more. For more information please visit www.isowcs.org.

Many employers forget that there is a limit to the number of days that are included in their OSHA logs. This, in turn, drives up their DART rates. According to OSHA’s recordkeeping rules you may "cap" the total days away at 180 calendar days. Therefore, you are not required to keep track of the number of calendar days away from work if the injury or illness resulted in more than 180 calendar days away from work and/or days of job transfer or restriction.

A related issue has to do with whether or not you can stop counting days if your employee retires or leaves your company. In this case you may stop counting days away from work or days of restriction/job transfer.

Another related issue deals with situations where your employee leaves your employment while still off on disability. In this case you must estimate the total number of days away or days of restriction/job transfer and enter the day count on the OSHA log, subject to the 180 day maximum.

The International Society Of Workers Compensation Specialists, in its Certified Injury Prevention Specialists program, provides superior training and on-line, on-demand host of resources to understand and comply with OSHA’s injury recordkeeping requirements. These resources also include the formalization of your safety team, injury prevention, OSHA compliance, safety training, prompt injury response, workers compensation disability management, plus more. For more information please visit www.isowcs.org.

I am often asked: “Should I count weekends, holidays, or other days for OSHA recordkeeping purposes?” As a general rule you must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those days. Therefore, weekend days, holidays, vacation days or other days off are included in the total number of days recorded if the employee would not have been able to work on those days because of a work-related injury or illness.

A related question I am also asked is: “How do I record a case in which a worker is injured or becomes ill on a Friday and reports to work on a Monday, and was not scheduled to work on the weekend?” In this case you need to record this case in your OSHA log only if you receive information from a physician or other licensed health care professional indicating that the employee should not have worked, or should have performed only restricted work, during the weekend. By the same token, if do you do not receive such information from the treating physician you are not required to record the claim in your OSHA log.

The International Society Of Workers Compensation Specialists, in its Certified Injury Prevention Specialists program, provides superior training and on-line, on-demand host of resources to understand and comply with OSHA’s injury recordkeeping requirements. These resources also include the formalization of your safety team, injury prevention, OSHA compliance, safety training, prompt injury response, workers compensation disability management, plus more. For more information please visit www.isowcs.org.

An organization’s DART rate is calculated by adding up the number of incidents that had one or more Lost Days, one or more Restricted Days or that resulted in an employee transferring to a different job within the company, and multiplying that number by 200,000, then dividing that number by the number of employee labor hours at the company.

In simple terms the “Number Of DART Incidents” is the sum total of the days indicated on columns K and L of the OSHA log (Form 300). So, looking at it this way, the DART rate is calculated as follows:

[(Column K + Column L) x 200,000] divided by the number of employee labor hours.

Why is it important to know your DART rate? OSHA it to develop annually what is known as a Site-Specific Targeting plan (SST). The SST lays out what categories of companies OSHA considers high priority targets for safety and health inspections in a given year. It amounts to a veritable "Most Wanted" list for OSHA compliance officers.

The chance of a SST OSHA inspection for most organizations will depend on the frequency that their employees miss work, suffer work restrictions, or receive transfer assignments due to work injuries or illness. The source of this information comes primarily from OSHA's survey of employer's incidents of injury and illness for the most current year that data is available, which is usually two years prior to the SST plan year. Employers are required by law to complete the survey. OSHA may also target particular industries that have a historically high injury rate, suspected underreporting employers, companies with other OSHA reported incidents, and those that failed to respond to the survey.
The International Society Of Workers Compensation Specialists, in its Certified Injury Prevention Specialists program, provides superior training and on-line, on-demand host of resources to develop and implement an effective safety and health program. These resources include the formalization of your safety team, injury prevention, OSHA compliance, safety training, prompt injury response, workers compensation disability management, plus more. For more information please visit www.isowcs.org.

Grab your chair because this blog may shock you. If an organization were to illegally hire an illegal alien it not only would be violating federal law. If this illegal alien were to get hurt on the job it also may be responsible for paying workers compensation benefits.

The Immigration Reform and Act of 1986 (IRCA) requires your organization to verify the eligibility of each employee hired after November, 1986 to work in the United States by completing the INS I-9 Form. The Immigration and Naturalization Service (INS) administers this act and is now an integrated component of the Department of Homeland Security. Form I-9 is a three-part document. The law requires that the employee complete Section 1 at the time of hire or when the employee begins work. Section 1 may also be completed at the application stage so long as the practice does not discriminate. The employer must complete Section 2 within three business days of hire and certify that the employee’s documents of identity and work authorization appear to be genuine and belong to the employee. Section 3 is completed by the employer when it is necessary to update or re-verify an employee’s work authorization document(s).

Your organization must also examine documents (as defined by the law) that establish the employee’s identity and eligibility to work in the United Stats before completing this form. An employer who does not comply with the IRCA is subject to severe penalties and fines ranging from $250 to $10,000 for each “unauthorized alien.”

Now you might ask: “What has the IRCA have to do with workers compensation risk management?” The answer might surprise you. Even though the IRCA clearly makes it illegal to hire illegal individuals, state and federal workers compensation laws vary as to whether or not such individuals can collect benefits if injured on the job. This is because the IRCA does not supplant state workers compensation laws.

Did you know that thirty-nine states include currently include illegal aliens under workers compensation law, in whole or in part. Ten other states are silent on the issue, making the legal landscape very uncertain in these states. Only one state, Wyoming, specifically precludes illegal aliens from coverage.

What does this mean to your organization? If you hire an illegal alien you are not only subject to severe penalties and fines. You also will be responsible for the payment of workers compensation benefits in most jurisdictions. These worker injuries will adversely affect your organization’s loss experience as well as inflate your workers compensation experience modification.

The International Society Of Workers Compensation Specialists, in its course titled “Fundamentals In Workers Compensation Risk Management,” provides superior training and on-line, on-demand host of resources to to comply with the Immigration Reform and Act of 1986 (IRCA). For more information please visit www.isowcs.org.

In carrying out its duties, OSHA is responsible for promulgating legally enforceable standards. Where OSHA has not promulgated specific standards, employers are responsible for following the Act's General Duty Clause. The General Duty Clause has become increasingly important to employers in the last few years as OSHA has begun to utilize the clause in more and more of its penalty and enforcement actions.

The General Duty Clause states:

“Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

In simple terms, this statement means that an employer may be obligated to protect employees from recognized hazards in the workplace even if there is not an OSHA standard which applies to the situation or if hazards still exist after compliance with a standard. In effect, the General Duty Clause obligates employers to take additional steps toward safety if the well-being of employees is in jeopardy.

The General Duty Clause extends OSHA's authority beyond the specific requirements of the OSHA standards when a recognized workplace hazard exists or potentially exists. The General Duty Clause is often used by OSHA when there is no specific standard which applies to a recognized hazard in the workplace. OSHA may also use the General Duty Clause when a standard exists, but it is clear that the hazards involved warrant additional precautions beyond what the current safety standards require.

OSHA's action on ergonomic hazards in the workplace is a good example of the application of the General Duty Clause in situations where a standard does not currently exist. There are no standards governing job or work station design to reduce or prevent cumulative trauma disorders or other injuries. However, OSHA has widely applied the General Duty Clause to address ergonomic hazards in the workplace. Typically in these situations, OSHA will discover ergonomic-related problems while reviewing a company's accident and injury records. For example, the highly publicized citations issued to several meatpacking plants for cumulative trauma disorders are an example of the use of the General Duty Clause to correct ergonomic hazards. The action in this area eventually led to the issuance of ergonomic guidelines for the meatpacking industry and consideration of a standard for the general industry.

OSHA has also issued General Duty Clause citations on other issues where no apparent safety standard exists. Citations have been issued for lack of training, failure to have additional safety or alarm equipment to detect or warn of chemical leaks, and failure to provide safe locations or safe access to valves or other instruments necessary to an employee's job.

One way to deal with the increasing threat of General Duty violations is to make good faith efforts to correct existing workplace hazards and to identify and address new hazards as they appear. Your organization should make its employees aware of any of the following steps that it is taking to go beyond compliance with OSHA's standards:

1. Regularly review accident and injury records to identify injury patterns or areas for concern;

2. Investigate every accident or injury in the workplace to determine the specific cause and to determine whether any action needs to be taken to prevent the accident or injury from recurring;

3. Conduct job hazard analyses on a regular basis in order to identify the specific hazards associated with every job and to identify new job hazards;

4. Document training efforts and conduct periodic retraining as necessary;

5. Consider establishing an employee safety committee in the workplace; and

6. When the organization has met the letter of the law, it should step back and critically assess whether the process might still be unsafe.

The International Society Of Workers Compensation Specialists, in its course titled “Establishing A Safety And Health Management System,” provides superior training and on-line, on-demand host of resources to stay in OSHA compliance and avoid penalties that can result from the General Duty Clause. For more information please visit www.isowcs.org.

It is critical that the Claim Coordinator make an initial determination of claim compensability. Many employers fail to properly evaluate the facts surrounding a worker injury from the perspective of compensability. Part of the reason is that the process itself often seems confusing. However, as you will soon see, the process is straightforward and is uniform in every state jurisdiction.

While the claim adjuster will have a significant role in establishing compensability, from a CONTROL perspective your claim management team must take into account all the information it has gathered through its Prompt Injury Response process to make an initial assessment. The Claim Coordinator should still report the incident to the claim adjuster for discussion and agreement. However, as part of the report the Claim Coordinator should submit all facts that support a denial of the injury under workers compensation law. As a rule of thumb, once the claim adjuster pays $1 for medical benefits it becomes extremely difficult to deny the claim. Therefore, the Claim Coordinator, with the help of others on the claim management team, must not leave anything to chance. Here are the key factors that go into an initial determination of compensability. You should be asking yourself these questions on every claim BEFORE it is submitted to the claim adjuster.

Is the Injured Person A “Covered Employee”

Workers compensation law specifically identifies those employee groups that are covered under the act and those that are not. Always keep in mind that although exempt employees may not be entitled to workers compensation benefits under the act, they still may sue for damages caused by the employer’s negligence. Also, there are individuals who may not be considered “covered employee’s” under certain circumstances. The bottom line, you should know who is a “covered employee under your applicable workers compensation statute.

Did The Employee Suffer An Injury Or Illness?

Generally this is a medical question. However, what many employers fail to realize is that just because an employee suffered an injury or illness does not necessarily mean that it is compensable under workers compensation statute. At the risk of being repetitious, determining compensability is not the responsibility of the treating physician. The treating physician’s job is to provide prompt, quality medical care and determine the extent of the injury or illness. During this process they naturally will interview the injured employee to determine, in the employee’s opinion, what happened to cause the injury. However, the treating physician should focus on treatment and diagnosis at this stage and communicate this information directly to the Claim Coordinator. Ideally the treating physician should be required to provide your organization with detailed information on his or her diagnosis. You then should determine the initial compensability of the injury based upon the facts determined by the incident investigation.

If the Claim Coordinator challenges the results of the physician’s diagnosis then he or she should provide the physician with specific information on the work being performed at the time of the injury, the facts surrounding the alleged incident, and any other reasons for questioning the claim. Because determining whether the injury is a medical question, rarely is it challenged on its face. However, as will be discussed shortly, whether the injury is work-related is often contested. They also have the option of obtaining an independent medical examination.

Did The Injury Arise In The Course Of Employment?

Employees are presumed to be in the course of their employment from the time they arrive at work until they leave. As a general rule the employee’s injury is viewed as being sustained “in the course of employment” unless the employer has clear and substantial facts to the contrary. In short, this criterion is a timing issue to a large extent; i.e., was the employee at work or not. While the answer to this question may see very clear-cut, there is one area where this normally easy criterion can be quite difficult to determine.

This involves what is called a “significant deviation” from work. A “significant deviation” is one that takes the employee out of the course he or she would follow to further the employer’s business. Each state has a wealth of case law on this subject and it is recommended that it be studied before jumping to conclusions. If the employee is traveling they are presumed to be in the course of their employment from the time they leave home until they return. This presumption can often be refuted by showing that the employee made a “significant deviation” from employment. This will often entail careful investigation by the employer and could also involve the retention of a private investigator.

As a general rule, minor deviations such as a driver stopping in a coffee shop for lunch are not significant and would not take an employee out of the course of employment. However, stopping at a tavern might be a significant deviation. There have been many litigated cases involving employees who made a diversion from their business. Often, this leads to vehicle accidents or other injuries. Depending on the specific circumstances, these cases are often viewed as “significant deviation” from employment.

The International Society Of Workers Compensation Specialists, in its course titled “Fundamentals In Workers Compensation Claim Management,” provides superior training and on-line, on-demand resources needed to understand and verify workers compensation compensability. For more information please visit www.isowcs.org.

If you are like most organizations in the United States, you have invested tremendous sums of money becoming ISO (or equivalent) certified or are in the process of doing so. While traditional safety and health initiatives have been implemented through a separate process, and even through a different organizational structure, more and more organizations are realizing that quality control and safety go hand in hand.

Integrating safety into an organization’s quality control procedures has a number of benefits:

1. It incorporates all the key components of an effective Safety Suggestion Program mentioned above;
2. It literally uses the dialog and synergy created in quality control and productivity meetings as the engine for success;
3. It encourages suggestions that apply to worker safety and quality control/productivity. As such it is a far more inclusive;
4. If utilized properly this approach will literally tap into valuable recommendations that many employees have and, as a result, make the organization more cost effective. In short, it puts the Safety Suggestion program on steroids.

Organizations who have implemented this process have seen remarkable reductions in worker injuries. Here are five suggestions to make this concept work for your organization:

1. Include safety as a topic in with your quality control meetings. As employees are meeting to discuss quality control issues make it a point to briefly discuss a safety topic. The topic could be a recent employee injury, a near miss incident, or a safety hazard that exits in the work area.

2. Train and empower your employees to perform a root cause analysis of all near misses, hazards and injuries. The employees should be taught to quickly discuss a quality control or safety issue and reach an agreement as to its root cause. Underlying all causes of work-related injuries are “root causes” that eventually manifest themselves as unsafe acts or unsafe conditions. These relate to the deeper, more complex causes that lead up to the unsafe acts and unsafe conditions. Examples include poorly communicated safety policy, poor employee training, poor supervisory training, poor maintenance of the facility, poor departmental inspections and poor follow-up on supervisory recommendations. Therefore, if the safety investigation or near miss report only indicated the unsafe acts or unsafe conditions, without attempting identifying the “root cause” of the hazard’s existence, the safety inspector is not really doing a very good job of preventing the reoccurrence of the hazard. It is kind of like treating the symptom and not the underlying cause of the disease.

3. Have a process for providing to upper management the recommendations from employees and take prompt action. Once problems are identified employees should develop a solution and provide a written recommendation to management. Management should then quickly evaluate the recommendation and make a decision on its implementation. Irregardless of the decision made, management should always provide a response back to the employees.

4. Have a procedure for following up on all safety/quality control actions until completion. Once management has provided its response and decided upon the appropriate course of action, there must be a system in place to monitor the progress of the improvement until completion. This should be one of the Safety Director’s key areas of responsibility. Nothing will circumvent the synergy of quality control teams more than realizing that its recommendations were made to upper management, upper management made the commitment to address the problem, but ultimately nothing was done.

5. Have a method of quantifying the uninsured waste and lost productivity costs resulting from worker injuries. A growing number of organizations are realizing that the waste associated with worker injuries far exceeds the cost of worker injury claim itself. In order to minimize this waste, improve productivity and product quality, and improve bottom line profits they are taking steps to credibly quantify this financial waste and base their injury prevention initiatives on this “total cost” information. Industry statistics consistently indicate that only 25-40% of the total cost of workers compensation claims is transferable to the organization’s insurance carrier.

The International Society Of Workers Compensation Specialists, in its course titled “Implementing A Safety & Health Management System, provides superior training and on-line, on-demand resources needed to integrate your safety training into quality control meetings. For more information please visit www.isowcs.org.

Let me ask you a few “guy-check” questions:

Do you feel you work hard to instill safety awareness throughout your operation only to find that your employees don’t take your lead?

Do your supervisors fill out department inspection forms but injuries still occur?

Do you feel you comply with most, if not all OSHA regulations but injuring still occur?

When injured, do your employees have confidence that they will be treated fairly?

Do you feel you have far too many litigated workers compensation claims?

If the answer is “YES” to any of these questions there is one thing lacking that can undermine the success of your safety program – and drive your workers compensation claims through the roof – TRUST.

As I have worked with employers in virtually every industry section I find that the success of their safety program is a function of the following:

(Intent + Implementation) X Trust = Results

By “intent” I mean the host of injury prevention and claim management activities that are designed to mitigate workers compensation costs. This can include safety planning, formalizing your safety policy, identifying safety training needs, identifying OSHA compliance requirements, and formalizing your prompt injury response and temporary duty program. These planning and formalization efforts demonstrate that, on paper, you clearly intend to prevent injuries and, if they occur, manage the claim from start to closure. By “implementation” I mean performing departmental inspections, investment in personal protective equipment and safety devices, conducting safety training, and communicating your safety policy throughout your organization. Here you are taking your intended safety program “out of the book” and demonstrating the organization’s safety plans.

But “intent” and “implementation” are not enough. Without TRUST your best laid plans, and all your hard work, will be diluted and, quite possibly, fail. By “TRUST” I mean winning the hearts and minds of all your employees. They TRUST your organization’s sincere effort to prevent injuries. They also TRUST your organization’s sincere desire to treat them with respect and fairness if they get hurt on the job. As TRUST goes up your results go up. By the same token, as TRUST goes down your results go down. I submit that if you answered “YES” to any of the above questions, and the results of your safety program is less that you wish, the underlying problem is a lack of TRUST. The good news is that reestablishing TRUST can be achieved and, once established, you will quickly see both the insured and indirect workers compensation costs drop substantially.

The International Society Of Workers Compensation Specialists, in its course titled “Implementing A Safety & Health Management System, provides superior training and on-line, on-demand resources needed to improve TRUST throughout an organization. Its resources are based upon what we call the 5-C’s – COMMUNICATION, COMPASSION, CONSISTENCY, COMPLIANCE and CONTROL. Resources also include the formalization of your safety team, injury prevention, OSHA compliance, safety training, prompt injury response, workers compensation disability management, plus more. For more information please visit www.isowcs.org.