Two mines subject to unprecedented enforcement action for violations

"You are hereby notified that the Mine Safety and Health Administration has determined that a Pattern of Violations exists at the Apache Mine," begins a letter to the New West Virginia Mining Co. It is one of two companies to be the first in the history of the Mine Act to be subject to the full effect of enforcement action for pattern of violations.

Apache Mine and Bledsoe Coal Corp.'s Abner Branch Rider Mine in Kentucky were among 14 mines targeted by the MSHA last year for "chronic and persistent health and safety violations" under Section 104(e) of the federal Mine Safety and Health Act of 1977. Of the remaining mines, eight met the prescribed "significant and substantial" goals, two were temporarily idled, one ceased production, and one has not completed the evaluation process.

"The determination was made on the basis of the mine's repeated S&S violations of mandatory safety and health standards pursuant to . . . Part 104 and MSHA's Pattern of Violations Screening Criteria," the letters continue.

Each company is given 90 days to correct the violations or "MSHA shall issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in Section 104(c) of the Mine Act, to be withdrawn from, and to be prohibited from entering such area until an Authorized Representative of the Secretary determines that such violation has been abated," the letter states. "This POV notice will terminate if, upon inspection of the entire mine, MSHA finds no S&S violations of mandatory safety and health standards."

MSHA recently introduced an online tool to allow mine operators and employees to track a mine's compliance history and compare it to the potential pattern of violation criteria. "Additional mines are under review by MSHA for potential POV and POV actions," the agency said.

Read more at the WorkersComp Forum homepage.

View the original article here

Workers' comp waiver shows adverse employment action

According to the 6th Circuit, requiring an employee with a disability to waive workers' compensation benefits otherwise available to employees without disabilities "smacks" of the type of discrimination the ADA seeks to protect.

Case name: Baker v. Windsor Republic Doors, No. 08-6200/09-5722/09-6553 (6th Cir. 03/08/11, unpublished).

Ruling: In an unpublished decision, the 6th U.S. Circuit Court of Appeals affirmed a jury verdict in favor of a door manufacturer under the Americans with Disabilities Act of 1990. The 6th Circuit also affirmed the District Court's rulings on post-verdict motions by the parties.

What it means: According to the 6th Circuit, requiring an employee with a disability to waive workers' compensation benefits otherwise available to employees without disabilities "smacks" of the type of discrimination the ADA seeks to protect.

Summary: A forklift operator for a door manufacturer had an enlarged heart, which required him to have a pacemaker installed. When he sought to return to work, concerns were raised about whether the work environment might affect the pacemaker. A doctor opined that the operator could return to work if he wore an alarm that indicated the presence of high electromagnetic fields. The manufacturer notified the operator that it did not consider the alarm a reasonable accommodation because he would have difficulty hearing it in the facility. Pursuant to state law, the manufacturer proposed that the operator waive his rights to workers' compensation benefits arising from injuries caused by his heart condition. He sued under the ADA of 1990. The 6th U.S. Circuit Court of Appeals held the operator was not entitled to a reasonable accommodation.

The court found the manufacturer regarded the operator as disabled. The manufacturer was not simply relying on the operator's doctor's medical advice but was giving effect to its own motivations.

The court also rejected the manufacturer's argument that making the operator sign the workers' compensation waiver -- pursuant to pre-ADA state law -- was not an adverse employment action. It was not unreasonable for a jury to conclude that the action was precipitated by the operator's insistence on an accommodation. However, precedent bound the court to conclude that a "regarded as" disability precluded the manufacturer's obligation to reasonably accommodate the operator. The court explained that imposing liability on employers who fail to accommodate nondisabled employees who are regarded as disabled would lead to bizarre results.

The court also held the operator was subjected to retaliation. The court said a reasonable jury could conclude that the true motivation for the manufacturer's action was to save the company medical payments from its self-insured workers' compensation plan. The court upheld the awards of damages and fees to the operator.

Read more at the WorkersComp Forum homepage.

View the original article here

Project Action: Snap-on's Safety Success

Project Action, an integrating safety and prevention program, has helped Snap-on refocus its comp and disability program--and earn Certificate of Merit for the Theodore Roosevelt Workers? Compensation and Disability Management Award in the for-profit sector in 2010.

The 29 elements of Snap-on's Project Action include:

Item 1: Adopt the Snap-on Incorporated Safety Philosophy.

Item 2: Establish selection and hiring practices that emphasize safety and identify the physical demands of the job (applicable also to promotions and transfers.).

Item 3: As a condition of employment and continued employment, each associate will complete the Certified Safe Associate (CSA) program.

Item 4: A Job Safety Analysis (JSA) is required on all job functions to identify the sequence of steps, potential hazards and the controls necessary to mitigate the hazard.

Item 5: Utilizing a Safe Workplace Design Review Team organization/approach, initiate and maintain safe workplace design concepts at all workstations to eliminate or safeguard any unsafe conditions.

Item 6: As a condition of employment and continued employment, each associate will complete the Job Specific Safety Certification.

Item 7: Develop and implement a plan to maintain equipment and operating standards.

Item 8: Institute and maintain the Snap-on Incorporated Safety Appeal Process for an associate to use when he/she feels that a specific job is unsafe.

Item 9: Improve Injured Employee Relations by emphasizing a nonadversarial approach to workers' compensation.

Item 10: Adopt an incident investigation approach that identifies the root cause of an accident or near miss, and assigns responsibility for corrective action.

Item 11: Develop and maintain claims management best practices that will enable Snap-On to monitor claims file activity and effectively play a team role with the claims administrator.

Item 12: Improve the medical management of an injured associate.

Item 13: Adopt a philosophy and maintain a program that encourages and supports

Temporary Alternate Duty (TAD) work.

Item 14: Establish and maintain a Safety Teams Organization that includes a Safety Review Board at each location, chaired by the senior executive at the location, and chaired by the president and CEO of Snap-on.

Item 15: Staff a Safety Management Organization that includes a safety manager at each location.

Item 16: Include objectives and action plans regarding safety in all strategic plans.

Item 17: Promote an awareness of general health issues that encourage a lifestyle committed to improving physical and mental health and quality of life.

Item 18: Ensure that safety-related incentive programs are based upon positive safety initiatives as well as on results.

Item 19: Maintain an understanding and comply with all health and safety regulations, including any labor law considerations, to ensure that our Associate Safety Program practices are compatible with all regulations.

Item 20: Make safety a permanent agenda item at all meetings where operational performance is discussed. It is strongly recommended that safety be the first item on any agenda.

Item 21: Include safety performance on all performance appraisals.

Item 22: Maintain and increase safety awareness and visibility by setting goals, maintaining safety bulletin boards and communicating through other media.

Item 23: Utilize the Snap-On 6S process to ensure safety is incorporated in all Rapid Continuous Improvement (RCI) activities.

Item 24: Periodically issue a corporate newsletter or other reports that communicate program focus, activity and results.

Item 25: Maintain safety-training aids for use throughout the company.

Item 26: Complete and distribute monthly (as required) the Snap-On Incorporated Safety

Improvement Report at each location.

Item 27: Establish the Snap-On Incorporated Safety Review as a framework for the self-evaluation of compliance and safety programs.

Item 28: Provide safety performance-related reports for use as a management tool throughout the company.

Item 29: Expedite safety improvement reviews and approvals.

View the original article here

Employer prevented from raising immunity defense in civil action

In Florida, where the employer denies a workers' compensation claim on the basis that the worker's alleged exposure did not occur in the course and scope of her employment, the worker is not required to litigate her claim to completion before filing a civil action.
Case name: Rush v. BellSouth Telecommunications, Inc. d/b/a AT&T Florida, No. 3:10cv436/MCR/EMT (N.D. Fla. 02/17/11).
Ruling: The U.S. District Court, Northern District of Florida held that a worker was not required to litigate her workers' compensation claim to completion before proceeding with a civil action.
What it means: In Florida, where the employer denies a workers' compensation claim on the basis that the worker's alleged exposure did not occur in the course and scope of her employment, the worker is not required to litigate her workers' compensation claim to completion before filing a civil action.
Summary: The worker filed a petition for workers' compensation benefits alleging exposure to toxic mold, methicillin-resistant staphylococcus aureus, and other complications related to "sick building syndrome." In response, the employer argued that the worker's alleged exposure did not occur in the course and scope of her employment and that she did not suffer an injury by accident. Prior to the final hearing, the worker dismissed her case before any determination on the merits of her claim. The worker then sued her employer for negligence. The employer argued that the worker's remedies were limited to benefits payable under the workers' compensation law, and therefore, she should be required to litigate her claims to conclusion in the workers' compensation arena before proceeding with a civil action. The U.S. District Court, Northern District of Florida disagreed and allowed the worker's suit to continue.
The employer contended that employees must exhaust their administrative remedies before filing suit in civil court. A prior case explained that when the employer asserts in the workers' compensation proceedings that the accident was not within the course and scope of employment, the employer cannot later raise a workers' compensation immunity defense in the civil action. The two defenses are irreconcilably inconsistent, the court said. The employer asserted that the workers' compensation law did not cover the worker's injury. Therefore, the worker was not barred from pursuing her claim in court.
Read more at the WorkersComp Forum homepage.
View the original article here