In an apparent case of first impression, a Board panel granted an applicant’s petition to modify the terms in a previously approved Compromise and Release (C&R), to allow a change in the administration...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Karen C. Yotis, Esq., a Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.
25 Years of Speeches and Bells
The key talking points for journalists and speechwriters in the AFL-CIO Workers Memorial Day 2014 Toolkit begin with this hardly-even-banal lead remark: “Each Year on Workers Memorial Day, working people throughout the world remember those who were hurt or killed on the job, and renew our struggle for safe workplaces.”
Forgive me for being underwhelmed. Workers Memorial Day has been an annual observance since 1989, and April 28, 2014 will be no exception. Throughout the nation, we will hear somber speeches. Bells will toll. And more workers will die.
Deciding to step away from the somewhat disquieting ceremonial cacophony, my colleague Robin E. Kobayashi and I chose instead to go after some straight talk about death on the job from a few thought leaders in the workplace safety arena. We approached: Tammy Miser, Founder/Executive Director of United Support & Memorial For Workplace Fatalities; Kim Bobo, Executive Director for Interfaith Worker Justice; Charles R. “Chuck” Davoli, 2014 President of Workers’ Injury Law & Advocacy Group and a Louisiana Workers Advocate; and Rebecca Shafer, attorney, author, and a workers’ compensation/risk management maven who has spent her professional life advocating for safe workplaces . . . and we asked this question:
Has worker safety improved at all during the past year?
The responses we received tell a tale about shell shocked survivors, outdated legislation, colossal expense, and skewed corporate strategy.
Every Single Death is Preventable
The most heart wrenching nugget uncovered during the research for this article was Miser’s unadorned statement that, “the facts are every single loss is preventable.” Miser’s answer to our question about worker safety in the past year began with this story about a job widow:
“Tina recently lost her husband, Douglas, 44, while he was working for Joel Cornelius Enterprises in Harrison, Ohio. She endured months of waiting for OSHA to investigate—not the incident but the violations—only to find that Federal OSHA proposed an $8,400.00 penalty for one repeat violation and in an informal settlement the penalty was reduced to $6,000.00 for one repeat violation for failure to provide fall protection. Tina confided, ‘I was someone who never realized so many died every day. I'd hear a story on the news of someone getting hurt at work and think, Oh how sad... and go on with my day. I know nothing's changing around here. I still see guys not tied off. I noticed some electric workers on a pole outside of work yesterday and thought that I hope that guy in the bucket goes home safe tonight. I do have to wonder how many are like Doug...one hears about them...’ ”
Miser went on to explain, “OSHA is limited as to what they may do even when an issue is known and they can focus on one subject but another is off the radar. Ask a family in mourning and they will tell you every time...Not enough is being done to protect their families.”
OSHA is Over the Hill
Death on the Job: The Toll of Neglect, 22nd edition, April 2013, a national and state-by-state profile of worker safety and health in the United States published by the AFL-CIO, states quite plainly that the OSH Act’s civil penalties are too low to deter violations, its criminal penalties are weak and rarely enforced, and its general provisions are woefully out of date. Exposing the OSH Act for the toothless hag that it has become, Death on the Job reveals: “at its current staffing and inspection levels, it would take federal OSHA 131 years to inspect each workplace under its jurisdiction just once. In 7 states . . . it would take 150 years or more [and] . . . in 24 states it would take between 100 and 149 years to visit each workplace once.”
Miser also got to the heart of OSHA’s limitations when she stated:
“Worker safety can be a very touchy subject depending on who you talk too. OSHA does a wonderful job of pinpointing specific trends such as Combustible Dust incidents. Once pinpointed, OSHA targets these facilities and sends out memos as a reminder of the workplaces responsibilities. David Michaels, PhD, MPH recently sent out a letter to the Communication Tower Industry where he states: In recent months, the communication tower industry has experienced an alarming increase in worker deaths. In 2013, 13 workers in the industry were killed at communication tower worksites. This is more worker deaths than in the previous two years combined. Four more workers have been killed in the first weeks of 2014.”
The OSH Act and OSHA are merely the tip of the iceberg. As the AFL-CIO Workers Memorial Day blog points out, “many job hazards are unregulated and uncontrolled. Some employers cut corners and violate the law, putting workers in serious danger and costing lives. Workers who report job hazards or job injuries are fired or disciplined. Employers contract out dangerous work to try to avoid responsibility. As a result, each year thousands of workers are killed and millions more are injured or diseased because of their jobs.”
The Grassroots Approach to a “Workplace Safety Culture”
Like Miser’s USMWF, the WILG regularly engages in the Sisyphean struggle to eradicate death and injury on the job. Through its broad national network and grassroots approach, the WILG continues to gain state and local victories that are beginning to build into an impressive collective of accomplishments. Taking a glass-half-full approach when giving his view on whether worker safety has improved at all during the past year, WILG President Chuck Davoli stated:
“The fact is that workplace safety continues to improve as more employers embrace a ‘culture’ for improved workplace safety. WILG's recent efforts in facilitating workplace safety leadership in the states of Massachusetts and Louisiana, and assisting development of workplace safety initiatives in six other states, has led to new opportunities for state WILG members to demonstrate their organized commitment and preference to preventing workplace injuries and fatalities from happening in the first place rather than merely litigating contested claims for benefits after a tragic accident.”
Davoli also talked about a new Workplace Safety Task Force developed in Louisiana with WILG leadership assistance, which concluded that workplaces considered to be “safer” demonstrated nine safety elements that the task force considered “essential” in establishing safer workplaces in the construction and building trades. These nine safety elements included:
Davoli explained the task force’s conclusion that “when the ‘essential’ safety elements are combined with a ‘baseline’ of 20 other incidental safety elements, a ‘workplace safety culture’ is inevitable resulting in safer work environments.”
Technology’s Partial Answer
The workplace safety culture upon which the task force conclusions are predicated may be taking hold in Louisiana, but Death on the Job tells another version of the story. In addition to high fatality numbers for oil and gas extraction, and associated helicopter transportation, Death on the Job also reports on workers dying from pandemic flu and infectious diseases; chemical exposure; the ubiquitous slip and fall; and workplace violence and homicide (the second leading cause of job death among women workers). These deaths occur throughout various industry segments—transportation and warehouse; construction; health care and social assistance, manufacturing, and retail—and the number of deaths differ based on the state where you live (North Dakota had the most worker deaths in 2013) and your ethnic group.
Yet there have been some unique and noteworthy improvements in worker safety that are geared to save lives. New technologies are behind the creation of tools that drive innovative preventive measures, such as the new mobile app for ladder safety from the National Institute for Occupational Safety and Health. NIOSH also partners with organizations like Total Worker Health in an attempt to factor a little work/life balance into the equation. And the emerging discipline of disaster science research may make it possible to inform new, evidence-based protocols for keeping responders safe in their rescue/recovery and rebuilding operations.
Nevertheless, as Kim Bobo reminded us when she responded to our question about worker safety:
“235 workers died on the job from January to March 2014. Although workers and worker’s organizations continue to advance on the struggle for safer workplaces and data shows that the number of fatalities have been decreasing every year, one worker that dies is one too many.”
Another part of the problem is the available data on deaths and injuries on the job. Bobo also stated: “As you know there’s no good data on the ‘true’ state of worker safety. Nonetheless, we believe that worker injuries are woefully under-reported, especially in low-wage sectors.” Compare the low figures for injuries reported to OSHA in Death on the Job to the huge number of workers’ compensation claims for the same period if you have any doubt about the unreliability of the data used to form the policies and strategies that drive workplace safety. A recent study comparing OSHA statistics with injuries reported to state workers’ compensation systems showed a discrepancy of 50 to 75 percent.
Bring that Gorilla Out of the Corner
But half-baked legislation and questionable data aren’t the only reasons that workers die on the job. No matter how the issues are sliced and diced, the finger of blame must also point in the direction of employers and their skewed priorities. Expounding on our question about improvements in worker safety during 2014, Bobo proclaimed:
“Despite some important and effective OSHA initiatives on worker health and safety, workers are more vulnerable than ever and too many employers put profit over worker safety. The majority of low-wage workers who get injured on the job do not access the workers compensation system, often because of employer misclassification and misinformation. Perma-temps, who now work in hotels, poultry plants, recycling and other dangerous worksites, are inadequately prepared and easily dismissed when injured. Still others who have jobs are afraid to complain about health and safety for fear of losing jobs. Vulnerable workers employed by unethical employers result in injuries and deaths.”
President Obama echoed this refrain in his Presidential Proclamation for Workers Memorial Day 2014, which declares that “[w]e must never accept that injury, illness, or death is the cost of doing business. Workers are the backbone of our economy, and no one's prosperity should come at the expense of their safety. Today, let us celebrate our workers by upholding their basic right to clock out and return home at the end of each shift.”
Getting America to Listen
While one would expect Obama, Bobo, Miser, and the WILG to point their collective finger of blame for death on the job at corporate America, when a cost containment expert like Rebecca Shafer speaks out so passionately on the employer’s obligation to keep an unrelenting focus on safety, you can be sure she’s not just whistling a partisan version of Dixie. When Shafer responded to our question about improvements in worker safety during 2014, she stated:
“Both sides need to understand each other better, so communication is key to improving the workers' compensation system. Some states have had better overall success than others; however, the bottom line is that each employer needs to make safety the #1 priority. Safety must be a higher priority than profitability, before inventory control, before marketing, and before product development. Until worker safety is TOP priority, a company will continue to have very little success in achieving a balanced workers' compensation insurance program. Executive leadership must understand the importance of safety, and not cut corners.”
Bravo, Ms. Shafer. Did you hear that America? It’s time to get to work.
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