Massachusetts Workers Compensation Lawyers Blog

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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According to the Bureau of Labor Statistics, there were 79 workers killed in 2011 as a result of a vehicle or mobile equipment backing up. These workers lost their lives either because they were run over by the reversing vehicle or because the vehicle crushed them against an object.

Backover accidents are a major problem not just in the workplace, but in parking lots and on roads nationwide. Our Boston workers’ compensation attorneys are glad to see that OSHA is making an effort to tackle this important issue. We hope that the informal meetings scheduled by OSHA to explore options for preventing backover injuries and fatalities will result in a real solution that could potentially save worker lives.

Backover Accidents and Work Injuries
OSHA is involved in exploring ways to reduce backover accidents because many of these accidents happen on the workplace every day. OSHA’s job is to impose standards and requirements on employers to ensure workplace safety. The guidelines passed by OSHA can range from notice required about chemical hazards at workplaces to the type of ergonomic office equipment that help workers’ to avoid repetitive stress problems. Since many workers are being injured by backover accidents, OSHA is taking action to see if they can make a difference in this area or if they can craft guidelines that will require employers to do more to avoid backover risks.

OSHA already has some details on what can be done to minimize the risk of backover accidents on their website. According to OSHA, some things that can be done to prevent backover accidents include:

• Having drivers make use of a spotter when backing up vehicles, especially large construction vehicles.
• Using video cameras that have in-vehicle display monitors. These monitors can cut down on or eliminate the blind spot for cars and trucks, potentially making the roads much safer for everyone.
• Using proximity detection devices to alert drivers when there are objects behind them. When a driver is aware of someone or something in his way, having this notice can prompt the driver to stop backing up before a crash occurs.
• Providing sufficient employee training. By letting employees know where blind spots are and how the blind spots can be avoided, employees can protect their workers who might otherwise become the victim of a backover crash.

OSHA provides these and other tips on avoiding backover crashes in hopes that it can prevent injuries or death. Unfortunately, need for more precautions and safeguards has clearly been demonstrated due to several recent injury cases. In June 2009, for example, an employee wearing a safety vest was struck and killed by a dump truck even though the dump truck had a backup alarm. One year later, in June 2010, a man was standing on the same dock when a tractor-trailer start to back up. He was crushed between the dock and trailer.

Hopefully, OSHA’s new efforts to resolve the backover accident problem can stop tragic incidents like these from occurring In the meantime, the suggestions on the OSHA page to avoid accidents are helpful tips for employers and employees to follow. It remains to be seen, however, whether OSHA’s stakeholder meeting will result in more requirements for employers to follow in preventing backover crashes.
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As bad winter driving weather approaches, it brings with it the risk of auto accidents due to snow and ice. Auto accidents can happen at any time, but for many, they occur during a commute or when driving for work. As such, these winter car wrecks can leave some people wondering whether workers’ compensation covers auto accident injuries.

Our Boston workers’ compensation attorneys can help you to determine whether your auto accident injuries could potentially be viewed as work injuries that will entitle you to workers’ compensation benefits.

When is a Winter Auto Accident a Work Injury?
A winter auto accident may be considered a work injury if the accident occurred while you were performing necessary work tasks. For example:

• A truck driver who is employed by a trucking company who is hurt in an auto accident when he is driving his regular route could be covered for his injuries by workers’ compensation.
• A bike delivery messenger who is delivering a message for his employer and who is hit by a car that skids on ice could be covered under workers’ compensation.
• An assistant who was sent to get his boss coffee at the café down the street could be covered under workers’ compensation if his car was hit on the way to the café.

In each of these three situations, the worker was performing a required work-related task and the driving was essential to the performance of that task. As such, the auto accident injuries can be viewed as any other work injuries that happened in the course of performing a job.

Work injuries sustained on a commute, on the other hand, are typically not going to be covered by workers’ compensation. Further, employees doing voluntary driving, such as driving somewhere on their lunch break, are also not going to be covered by workers’ compensation if they get into a winter auto accident.

Why Make a Workers’ Compensation Claim?
If you do get into an auto accident this winter and the accident could potentially be covered by workers’ compensation, then it is advisable to make a workers’ compensation claim. Making such a claim is a smart choice because your workers’ compensation benefits may cover things that your health insurance and car insurance do not cover.

For instance, while personal injury protection (PIP) pays some of your medical bills and lost wages, you are limited to the amount of coverage that is provided in your policy limits. When you make a workers’ compensation claim after a winter car accident, on the other hand, you may have much broader recovery and may be able to receive ongoing disability benefits if your auto accident injuries make it impossible for you to return to work at the job you had before or at any other job you might be qualified to perform.

Because workers’ compensation benefits can offer you more benefits than other types of insurance, it is always worth considering making a claim if you suspect that your auto accident could be viewed as arising from doing your job.
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The medical industry is undergoing significant changes as technology advances, and one important change is that doctors and healthcare providers are increasingly relying on digital technologies. Doctors and healthcare providers are also increasingly making use of electronic medical records. While these advances may allow for healthcare providers to offer better and more efficient care to patients, they also create new risks of workplace injuries for those in the medical field: the risk of developing repetitive stress disorders.

Our Foxboro workers’ compensation attorneys want to ensure that doctors and healthcare providers are aware of the new potential risk of injury in the workplace. We also urge healthcare providers to do everything possible to avoid doing damage to their health as they work to improve the health of others.

Increased Risk of Workplace Injuries in the Medical Profession
Repetitive stress injuries can develop when the body is asked to do the same movements over and over. This can wear down on the soft tissues of the body (the muscles, ligaments, joints and tendons) and eventually, significant pain can result. Carpal tunnel, for example, can occur when people repeatedly use their hands over and over to perform repetitive tasks such as typing on a keyboard or computer.

Unfortunately, with the increased use of electronic medical records and digital technologies, healthcare providers are being forced to engage in repetitive typing and other repetitive physical tasks with ever-increasing frequency. A December 2012 US News Health Report addressed this problem in an article entitled “As Doctors Go High-Tech, Staff Injuries May Rise.”

According to the US News article, doctors, nurses and other medical workers are all at risk of developing repetitive strain or stress injuries both as a result of bad office layouts and as a result of improperly using computer devices. Hospitals and care facilities are incorporating new technology and demanding heavy reliance on the new technology without considering whether the old offices and hospital spaces are set up for the advances. This results in offices and computer station that are not ergonomic in any way. Those who enter medical information or otherwise use computers and digital technology in these poorly designed spaces are, therefore, at greater risk of developing a repetitive stress injury.

Work Injuries are Widespread
The US News Health Report also provided information on a recent study conducted by a professor at Cornell University in Ithaca. The professor studied 179 doctors and discovered that:

• More than 40 percent of male doctors and more than 50 percent of female doctors experienced pain in the neck, shoulder, upper and lower back at least once each week as a result of repetitive strain on the body.
• Around 30 percent of male doctors and 40 percent of female doctors reported experiencing wrist pain at least once per week.

With so many healthcare providers experiencing problems, it is essential that hospitals and care facilities take steps to improve ergonomics and to reduce the chance that their employees will develop permanent long-term injuries due to repetitive strain.

Care providers should also watch their posture and wrist position and should take regular breaks to stretch and exercise in order to minimize the risk of repetitive stress injuries. Ultimately, however, it will fall to the employers of healthcare professionals to design appropriate office spaces and work environments that accommodate changing technology.
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