Massachusetts Workers Compensation Lawyers Blog

In the United States, homicide is the second leading cause of fatalities in the workplace for women and is the fourth leading cause of workplace deaths for men. With so many workers dying as a result of violence in the workplace, our Boston work injury attorneys believe it is important to do everything possible to understand why workplace violence occurs and how to prevent it.

Recently, a new study was released that can shed some light on this issue. The study is called “An Examination of Strategies for Preventing Workplace Homicides Committed by Perpetrators That Have a Prior Relationship With the Workplace or its Employees.” It was published in the Journal of Occupational and Environmental Medicine in December of 2012.

Understanding Workplace Homicide
The new study divided workplace homicides into four different categories of violent incidents in order to better understand why homicides are occurring. The different categories included:

• Situations where the attacker and the employee who was killed had a personal relationship with each other outside of work, such as being in an intimate relationship.
• Situations where the attacker had no valid connection to either the employees or to the business.
• Situations where the attacker is a customer of the business or a client who receives some types of services or goods/items from the company.
• Situations where the attacker was a past employee for the company

According to the study, there was some type of prior relationship or prior connection in between 12 and 23 percent of workplace homicide incidents. In other words, the attacker usually knows the employees or has a connection to the business.

The study also revealed that while the rate of workplace homicides has gone down overall, homicides committed by people connected to the business have declined at a slower rate than the decrease in homicides committed by people with no business or personal connection.

Understanding who is committing workplace homicides is helpful for employers who want to take steps to make workplaces safer. According to the article describing the study, some protection methods suggested by OSHA for reducing the risk of workplace violence include:

• Putting employees behind physical barriers.
• Making it easier to see into the workplace by improving visibility.
• Adding extra lighting outside of the workplace.
• Using security devices including surveillance cameras.
• Having policies that restrict access to the workplace, including potentially having security guards.
• Avoiding a situation where an employee is working alone.
• Training employees in workplace violence prevention.

Employers should strongly consider taking these steps to prevent workplace homicide. Not only can employers prevent their workers from getting killed at work by taking the proper precautions, but employers can also hopefully avoid a workers’ compensation claim by keeping their workers safe. Workers’ comp claims can be brought in certain cases when workplace violence or homicide occurs and the surviving family members of the victim who was killed can receive a death benefit as well as compensation for funeral costs and other related expenses. Typically, a negligent-security or other wrongful death civil lawsuit would also be pursued.
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Recently, the Massachusetts Coalition for Occupational Safety and Health and the University of Massachusetts released a study on lower income workers. The study involved participants in a variety of different industries including the construction industry; the manufacturing industry; the housekeeping/cleaning industry and the health care/human services industry.

The results of the study indicated that many of the low-wage workers, including those in non-sedentary jobs, were suffering from obesity. The study suggested a possible link between their work environment and their weight problems. Unfortunately, our Boston workers’ compensation attorneys know that obesity can not only be a result of workplace factors but that it can also increase the risk of suffering a workplace injury. As such, we urge all employers and employees to consider the results of this new study and to take action to help fight obesity in the workplace.

The Link Between Low Wage Work and Obesity
The results of the University of Massachusetts’ study showed a clear correlation between working in certain low wage jobs and experiencing struggles with weight. There were several primary factors that could explain this correlation including:

• Time Pressure: Many low wage workers responding to the survey described having limited break time and having to eat at work, making it harder to make healthy eating choices. Further, workers indicated that they were not near to places offering healthy meals while they were working and that when they were at home, time pressures limited their ability to cook healthy meals.
• Psychological stress: According to the study, the psychological stress experienced by many low wage workers due to money fears or bad working conditions caused their cortisol levels to rise. Elevated cortisol levels can increase weight gain.
• Decreased ability to exercise: Many of the low wage workers responding to the study did not have time to exercise and did not have the energy to exercise after a long day of work. Further, many reported that their job took a physical toll on their body or that job related injuries left them in pain and unable to exercise.

For these and other reasons, the low wage workers responding to the survey indicated that they were involved in an ongoing struggle with their weight because of their jobs, despite the fact that their jobs were not sedentary.

Can Obesity Add to Work Injury Risks?
While this study shows that obesity can be tied to work conditions, it is also important to realize that being overweight could also put someone at greater risk of developing a workplace injury. For example, someone who is overweight might be more prone to muscle strains or sprains when performing work. An obese worker may also be more likely to develop a repetitive stress condition since the added weight will put more pressure on the bones and joints of the body.

In the event that a worker does become injured on the job, whether obesity played a role or not, the employer can be responsible for paying benefits through workers’ compensation.
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As baby boomers age, the number of older workers in workplaces may grow as a result. The aging of the workforce creates many wonderful opportunities for older adults to share their lifetime of knowledge and experience with the next generation. However, having a workforce with a larger number of older workers also presents some challenges because older workers tend to have a very different health concerns than those who are much younger.

One area of potential concern is older workers and workers’ compensation. However, a recent report by the National Council on Compensation Insurance indicates that the aging of the workforce is likely to have less of a negative impact on the cost of workers’ compensation claims than most people had originally expected. Our Boston work injury attorneys believe that this information is very important since it can help to reassure employers and insurers that aging workers pose no threat to workers’ compensation costs.

Aging Workers’ and Workers’ Compensation
The National Council on Compensation Insurance released their report in November of 2012. The result is comprehensive and demonstrates some important facts about older workers and the potential for work injury and workers’ compensation claims. For example, the report indicates that:

• The costs for all workers over age 35 are very similar when factoring in duration of payments, treatments per claim made, daily benefits and cost per treatment. In other words, workers’ compensation costs would not necessarily be notably more for a 60-year-old than for a 35 year old.
• While the costs of workers’ comp claims for those over 35 are more than the costs of claims for workers under 35, the higher wages of older employees translate into higher premiums paid by employers. As such, these higher premiums can offset the added expense of workers’ comp insurance for those age 35 and up.
• The rate at which an older person’s mental and physical performance deteriorates is much slower than many people believe.
• Employers are taking extra steps to protect workers, especially older workers, from injury. One example, for instance, may include reducing the weight of heavier items that older worker might have to carry. Some employers go even further and actually provide trainers to teach stretching and treatment for aches and pains.

While all of this data is encouraging, perhaps the most encouraging information for older employees and for the employers who depend upon them is that the deterioration of a person as he or she ages is slower than most people might expect. The National Council on Compensation Insurance delved into this issue, addressing an earlier study that evaluated older individuals in three key areas. The three areas included long-distance running, playing chess and sprinting. The purpose was to test mental and physical capabilities.

The study determined that between ages 35 and 65, the deterioration rate when it comes to long distance running was 27 percent, so a 65 year old was 27 percent less effective in running a long distance than a 35 year old. For sprinting, the deterioration was even smaller at only 18 percent. Finally, there was only a 6 percent decline in ability from ages 35 to 65 when it came to playing chess.

All of this means that older adults are not necessarily any more susceptible than younger adults to suffering work injury that would lead to a work claim. This should help keep Massachusetts’ workers’ compensation costs at a reasonable level while continuing to provide the type of insurance support that people are depending on.
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In November of 2012, the CDC reported that a NIOSH alert had been released. The alert was intended to raise attention about preventing occupational respiratory disease, which can occur as a result of dampness in buildings.

Our Boston work injury attorneys encourage every employer to review the NIOSH alert and to take proper precautions to ensure that buildings are safe. Workers should not be in danger of developing respiratory problems as a result of unsafe conditions in the workplace, and those who do develop respiratory problems should file a workers’ compensation claim to cover their losses.

The NIOSH Alert and Occupational Injury
According to the CDC, NIOSH released their alert because buildings can develop dampness and moisture problems, which in turn can cause workers to develop respiratory issues.

The buildings that NIOSH specifically targeted in its alert include:

• Office Buildings
• Schools
• Non-Industrial buildings

The causes of moisture and dampness in these buildings, according to the alert, can include high humidity indoors; leaks in the roof and windows; and floods, among other potential problems. Whatever the reason, NIOSH defines “dampness” in a building as the presence of excessive and undesirable moisture within the space.

The moisture itself is not the only major concern. Rather it is the consequences of the dampness that NIOSH focuses on. In their alert, for instance, they indicate that building materials can break down as a result of the dampness. Mold, bacteria and fungi are also more likely to grow in a damp environment while volatile organic compounds are likely to break down as well.

When a building is damp and mold and fungus or bacteria begins to grow as a result, this can create serious indoor air quality problems. The extent of the problems and the health risk can depend, to some extent, on the type of mold and bacteria that develop. NIOSH indicates that there are more than 1,000 different species of mold that can grow at different moisture levels. Some types of mold, such as black mold, can be toxic or even deadly.

Of course, there is no good mold, mildew or bacteria growing in these buildings. Mold spores, bacteria and other unwanted organisms can spread throughout a building through the HVAC system, and can be breathed in by workers in the building.

As a result, workers within damp environments may develop a variety of medical problems including asthma, respiratory infection, hypersensitivity pneumonitis, bronchitis, and respiratory infections, among other issues. Those who already have asthma or a respiratory condition will likely see their medical issues worsen as a result of exposure.

NIOSH encourages acting quickly to prevent problems caused by dampness. Workers who have developed respiratory problems as a result of work in damp buildings may also take action. Workers in such cases should be eligible to make a workers’ compensation claim to obtain benefits including payment of medical costs for treatment of any respiratory problems or illnesses they develop.
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On Wednesday January 16, Bloomberg BNA published an article that had some good news for workers. According to the article, some evidence indicates that more employers are placing a premium on worker safety when it comes to managing their workplaces. However, while there is reason to be optimistic, the article also indicated that a wide range of different tools and enforcement mechanisms continue to be necessary in order to protect workers.

Our Boston work injury attorneys were pleased that many companies are recognizing that the safety of workers comes first. We applaud ongoing efforts to make workplaces safer and we encourage all employers and regulators to continue doing everything possible to help prevent work injury.

Labor Department News on Worker Safety
The Bloomberg BNA article included quotes from David Michaels, the head of the Occupational Safety and Health Administration, a division of the U.S. Labor Department. While Michaels acknowledged that it is difficult to identify overall changes, he also commented that he has noticed many employers now recognize the importance of managing for safety.

Managing for safety does more than simply prevent workplace injuries or workplace deaths. Placing a premium on worker safety can also help to make companies more profitable. Michaels believes that more companies are embracing this logic, and points to a specific meeting he had with oil and gas company executives in which one leader of a chemical company indicated that everything else follows when you manage for safety from the top down.

If indeed more and more companies are realizing this essential fact, then it could be good news for workers. While OSHA standards aim to protect employees across different sectors, employers still violate worker safety laws and workplace injuries and fatalities still occur as a result. Although not every accident can be prevented, the number of accidents can be greatly reduced if employers realize that the fate of the company is inevitably tied to creating and maintaining a safe workplace for human capital.

Enforcement Still Needed
While the Bloomberg BNA article contained some good news and painted an optimistic picture for workers, there was also an important reality recognized: while it may be becoming more popular to manage for safety, a large segment of American businesses still do not abide by the rules.

Michaels points out that there are many employers who continue to fall short of OSHA standards, in some cases because they are unaware of the standards or because they don’t believe that correcting a violation is a priority.

A number of tools are used to combat employers who fail to prioritize workplace safety and cooperate with all OSHA requirements. Some of the tools include press releases that publish citations, which are used as a deterrent to prevent other companies from breaking the rules. These and other enforcement efforts should continue to encourage employers to do the right thing. Workers harmed by an unsafe workplace should also make a workers’ comp claim against their employer to ensure they do not suffer undue hardship financially.
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In December of 2012, Investors Business Daily reports that a record number of workers signed up for federal disability benefits. During this month, almost 90,000 new workers signed up for these benefits, which are provided through the social security administration. This brings the total number of disabled workers collecting benefits up to more than 8.8 million.

Large volumes of new applicants and new benefit recipients could contribute to backlogs in application processing, a major problem for many workers since it already takes an average of 3-5 months to apply for social security disability. Qualifying for benefits through the social security administration also remains difficult, with greater than 50 percent denial ratings for initial applicants.

Our Boston workers’ compensation attorneys want to make sure workers are aware that applying for disability benefits through the SSA is not necessarily their only option. If you are injured at work and are disabled, you should be able to make a workers’ compensation claim and obtain either temporary or permanent disability benefits through your employer’s workers’ compensation insurer.

SSDI vs. Workers’ Compensation
The 90,000 new applicants applying for federal disability benefits in December of 2012 were applying for SSDI, which stands for supplemental security disability insurance. SSDI is a program that is based on your work history, which means that you must have worked for a certain period of time and earned credits in order to obtain benefits through the program (as opposed to a similar needs-based disability benefits program called SSI).

Because SSDI is available for workers who have paid in to the system, some of those who apply for benefits were likely working before becoming disabled. This means some may have been injured doing their jobs and thus may also be eligible for workers’ compensation benefits, not just SSDI benefits.

Workers’ compensation and SSDI are different programs that offer different benefits and have differing eligibility rules. SSDI doesn’t require that your injury or disability arise from your job in order for you to qualify for benefits, while workers’ compensation does. However, workers’ comp in many ways provides much broader coverage for those whose injuries did occur as a result of work.

For example, while SSDI will pay disability benefits only if you have a long-term condition that has or will last for a year and that prevents you from working in any job you are qualified for. Workers’ comp disability, on the other hand, can be paid for short term or temporary disability until you return to work. If you are not totally disabled but your work potential is reduced, then workers’ comp will also pay partial disability benefits.

Knowing the differences between SSDI and workers’ compensation is important, especially now with the potential for such long waits to apply for SSDI benefits. While in some cases, you may be entitled to both workers’ comp and SSDI, you should always be sure you understand your right to make a work injury claim through workers’ compensation so you do not miss out on benefits that are available to you.
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Trench work is a part of almost every construction project, as Biz Journals reports. Biz Journals also indicates that trench work is among the most dangerous jobs since all trenches eventually collapse. When a trench does collapse, a worker could end up buried alive under huge amounts of dirt and rubble. The dirt is heavy — with a cubic yard weighing as much as 3,000 pounds — and can kill a worker instantly or trap a worker.

Because trenches are so dangerous, it is imperative for employers to protect workers that they send down into the trenches. Our Boston workers’ compensation attorneys urge every employer to review Occupational Safety and Health Administration (OSHA ) guidelines on trench safety. By reviewing the information and employing some of the tips and advice described, employers could potentially save lives.

The Dangers of Trench Work
Trench work is risky because of the nature of the job, so it is imperative that employers do everything in their power to make it less dangerous. As OSHA suggests, some possible options for improving workplace safety in trenches include:

• Creating a trench that is designed to reduce the chances of it collapsing or falling on your workers. There are a couple of different ways to do this. For example, a trench could be sloped for stability, which would essentially mean it was dug like a mountain with a little valley in between. It could also be cut to create a stepped bench, which would mean de facto steps were set up along the sides of the trench. This second option would work only with Type A and Type B soil.
• Using a support system made up of posts, beams, planning, shores or hydraulic jacks. This would ensure that the trench cannot collapse down on the worker. Because a full system has to be built, this can add to the cost and time involved in a trench work project.
• Shielding workers in the trench by making use of a trench box. Again, this solution has many of the same problem that using a support system made of brick or wood does. It simply puts the worker in a bubble and it is a costly way to keep a worker safer while performing trench work.

Although none of the above solutions are perfect, they are the suggestions that OSHA offers for helping to ensure a trench is safe.

While these suggestions are meant to provide workers and employers with ideas for trench solutions, OSHA also goes on to impose some firm requirements on employers related to trench work. For example, the OSHA brochure mandates that excavated materials and all other equipment are at least two feet from the trench’s edge. OSHA also mandates that an exit be available for evacuation quickly if need be. The exit should be within 25 feet of where the worker is in the trench.

Following these instruction is essential to making sure workers aren’t injured or killed while they perform their normal routine work tasks. Unfortunately, OSHA reports that two workers are killed per month in trench collapses. These tragic deaths can and should be prevented by taking extra safety precautions in an inherently dangerous industry.
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OSHA has a number of different safety requirements in place that impose burdens on employers and that aim to protect workers from becoming injured on a dangerous worksite. When an employer violates OSHA requirements, the employer could face fines, citations or even a work shutdown. Recently, one New England contractor realized just how steep the fines can be as a result of failure to comply with safety precautions for workers.

Our Boston injury attorneys believe that the regulations promulgated by OSHA serve a very important purpose in protecting worker safety. We believe that the citations and fines issued in the recent case against the negligent New England contractor send an important message to employers everywhere that violating safety regulations simply doesn’t pay.

New England Contractor Settles with OSHA
To understand the serious consequences of safety violations, you can look no further than the circumstances surrounding the New England contractor that recently settled with OSHA. As OSHA reported in a regional news release in December of 2012, the New England contractor had failed to comply with scaffolding laws and with employee training laws in the construction of Keene Middle School.

The contractor had failed to inspect the scaffolding for defects, as OSHA requires. The company also failed to adequately train the temporary employees putting up the scaffolding. The contractor was required by OSHA to provide training on the erection, inspection and supervision of the scaffolding but did not do so.

All of these failures contributed to the death of a worker on the construction site when the plank he was standing on snapped. In learning of the workers’ death, OSHA investigated the site and issued citations The contractor contested these citations initially. However, the contractor has now settled the claim.

As part of the settlement, the contractor has agreed to correct all of the defects that OSHA issued citations for. The contractor will also pay a fine of $100,000 and will change its training programs going forward. Temporary workers will now be trained in the same manner as permanent staff on scaffolding safety issues. The contractor will also sponsor presentations that offer additional training on erecting and dismantling scaffolding.

Workplace Accidents Can Be Prevented by Responsible Employees A failure to follow fall protection rules is the number one violation that leads to citations, according to a 2012 report by OSHA. A failure to follow scaffolding safety rules is the third most common violation leading to citations. Unfortunately, falls and scaffolding injuries are also top causes of workplace injury, likely because employers are often lax in creating and enforcing safety rules. These employers can and should be cited because they are putting their staff in harm’s way.

As this recent accident involving the New England contractor demonstrates, an employers’ failure to make sure workers are safe can be deadly. Employers are in the best position to train their workers and to ensure safe operation of a workplace, including safety when working at an elevated height. If an employer fails in their obligation, they can not only face large OSHA citations but can also be responsible for compensating the worker under workers’ compensation law. Workers’ comp laws make employers strictly liable for injuries that result from work-tasks, so any employee who gets hurt at work should explore his options for compensation.
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