Category Archives: Workplace Injury

Lincoln Vital Signs 2017 Report Omits Workplace Injury Statistics

Posted on September 25, 2017 by Jon Rehm

Why were workplace injury statistics left out of Lincoln Vital Signs report?

The 2017 Lincoln Vital Signs report produced by Prosper Lincoln was an interesting and wide- ranging report about demographics and the economy in Lincoln. (Anyone who is interested can read the entire report by clicking here.) But the exclusion of information about workplace safety in Lincoln was puzzling and possibly telling.

In a report chock full of statistics about safety and the workforce in Lincoln, there was no mention about the number of workplace injuries and/or deaths in Lincoln. The Nebraska Workers Compensation Court tracks workplace injuries and deaths statewide. In Fiscal Year 2016, the last year statistics were available, there were nearly 40,000 reported workplace injuries in Nebraska and 40 reported workplace deaths. By a rough estimate, nearly 6000 of those workplace injuries would have taken place in Lincoln and roughly six of those workplace deaths would have taken place in Lincoln.

By way of comparison, from 2006-2016 Lincoln averaged roughly six homicides per year. In short being killed on the job and being killed in a murder are as about as common in Lincoln. In fact, last year a convenience store clerk was murdered on the job in northwest Lincoln.

There is an old adage that goes “Measure what counts and what counts is measured.” If workforce deaths and injuries aren’t measured in Propser Lincoln’s “Vital Signs” does that mean that workplace safety doesn’t count in Lincoln, Nebraska because it wasn’t measured?

It might be harsh to conclude that workplace safety doesn’t matter to groups like Prosper Lincoln, but if you look at who is behind Prosper Lincoln you can see why concerns about workplace safety may have been excluded. Propser Lincoln is heavy on voices from the business community, government, academia and the non-profit sector. There aren’t a lot of voices for employees who are part of Propser Lincoln. I believe that many of these people, some of who I am friends with, are for the most part well-meaning but live in such a white-collar world that the idea of getting hurt at work is almost far-fetched. Maybe this cloistered mindset explains why a supposedly comprehensive report about Lincoln’s economy excludes information about workplace safety. Maybe the same mindset explains ignoring fairly well-publicized links between work injuries and poverty.

City and local governments can take actions to promote workplace safety. Many cities have taken actions to protect convenience store clerks and and other retail workers who work overnight shifts. Sometimes occupational safety and public safety are thought of as separate topics, but protecting retail workers is something that comprises both public and occupational safety. Protecting retail workers from violence in Lincoln would be a good first step, counting workplace fatalities and injuries within the City of Lincoln would be another.

What Was The Big Deal About The Eclipse?

Posted on August 25, 2017 by Jon Rehm

The total solar eclipse skirted just south of our Lincoln office on Monday. The once or twice in a lifetime event was a tourist draw for Nebraska and all around eastern Nebraska today there was a semi-festive atmosphere surrounding the eclipse. (When the eclipse passed over Lincoln around 1 p.m., the cloud cover combined with the eclipse created the temporary appearance of a severe storm coming in at dusk)

In and of itself the eclipse is interesting and even awe-inspiring, but I am not sure it completely explains why people are so fascinated by the event. I believe that part of the attraction of the eclipse is that it gives people an excuse to get away from work on a Monday – especially a Monday in summer.

I don’t mean that in a judgmental way. Americans work hard.

Among citizens of the so-called G-7 nations (U.S., U.K., Canada, Japan, France, Germany and Italy), Americans put in the most hours at work among the citizens of these wealthy nations. The average American put in 1783 hours on the job in 2016 in comparison to just 1363 for the average German worker.

The average American worker logged roughly two more weeks on the job than their counterpart in Canada. The average American worker also logged 70 more hours than their notoriously hard-working Japanese counterpart.

Earlier this year, the Heinz Corporation announced it was giving its employees a vacation day on Super Bowl Monday. Corporate America realizes that American workers work hard and some companies realize that giving people a little extra time off isn’t going to hurt the bottom line. And whether it’s a solar eclipse, the Monday after the Super Bowl or “Black Friday” hard working Americans are going to take some deserved time off from work if they are able.

A More Dangerous And Demanding Future For Retail Employees?

Posted on June 6, 2017 by Jon Rehm

Walmart announced last week that it started a pilot program where store employees will deliver packages from stores on their way home from work. If this practice is adopted company wide and adopted by the retail industry as a whole, it will change the nature of retail employment.

As written about on this blog before, delivery and warehousing jobs tend to have more physical injures than traditional retail clerk jobs. If employee delivery becomes a regular part of retail employment, then retail jobs should become more hazardous. One positive part about Walmart using employees to make deliveries would be the fact that those employees should be covered by workers’ compensation if they are injured while delivering packages. Fed Ex has faced legal challenges for misclassifying their delivery drivers as independent contractors. Uber, who has also faced challenges on how they classify their drivers, also has a package delivery service.

Delivery jobs tend to be more physically demanding than retail clerk jobs and can also subject employees to DOT requirements. If package delivery becomes an expected part of retail employment, retail jobs will have more physical and occupational requirements. This could mean in the future that retail jobs may not be a fallback option for workers from other physically demanding occupations who become unable to do their old jobs because of injuries or health problems.

The rise of online shopping has greatly reduced the number of stores of traditional retailers. This decline in so-called “big box” stores lead to a parallel reduction in retail employment. Jamelle Bouie pointed out in Slate that this collapse in retail employment has harmed women, people of color and urbanites who tend to work in retail. Bouie points out, I think correctly, that retail employees tend to be disrespected in part because of gender and race. Bouie also states the decline in retail employment has received much less attention than declines in employment in other sectors like manufacturing and mining that tend to employ more white males.

In contrast to traditional retail workers, delivery drivers tend to be paid better. UPS delivery drivers seem to enjoy a certain level of prestige, respect and even a mystique within the workforce. (11) Maybe some of that respect will rub-off on retail workers if they become delivery employees. On the flip slide, competition from largely non-unionized and lower-paid retail workers may cut into pay and benefits that delivery drivers and their unions have fought for over the years.

Opioids And Doctor Choice

Posted on April 27, 2017 by Jon Rehm

Chicago Mayor Rahm Emmanuel said in 2008 that “You never let a serious crisis go to waste.” In the context of opioids and workers compensation this could mean reforms to workers compensation systems beyond drug formularies If solving the opioid crisis means limiting the number of doctors who can prescribe opioids, then there will be fewer doctors who will treat workers compensation cases.

Additional licensure and certifications aren’t unheard of in the world of occupational health. In 2016, the Federal Motor Carrier Safety Administration implemented a new rule that only doctors on their registry can perform DOT Physical Examinations for truckers and other professional drivers. This reduced the number of doctors who can perform those examinations.

When I testified on LB 408, a bill that would have implemented drug formularies for opioids under the Nebraska Workers’ Compensation Act, some doctors were testifying that there was little training in regards to prescribing opioids. Though an opioid prescription registry like the DOT examination registry wasn’t proposed, you could certainly see it proposed as a solution to the opioid problem.

By limiting the numbers of doctor who handle workers’ compensation claims through additional licensing requirements, injured employees will have fewer choices for medical treatment and are more likely to have their employer control their care.

Evidence shows that the workers compensation system has made some contribution to the opioid crisis. According to a 2015 report by the Bureau of Labor Statistics over 3.5 million employees were injured at work. Half of those injuries required the employee to miss sometime from work. A study of employees in 25 states done by the Workers Compensation Research Institute revealed that 55 to 85 percent of employees who missed at least one week of work were prescribed at least one opioid prescription.

When I testified on LB 408 the consensus among the doctors testifying on the legislation was that injured workers were more vulnerable to narcotic addiction than other patients who are prescribed narcotic pain medication. Scientific studies give some credence to these conclusions. Workers compensation claims can cause economic insecurity. According to an article in Scientific America, Addiction rates for opioids are 3.4 times higher for those with incomes under $20,000 per year than they are for employees making more than 50,000 per year.

But that article also shared studies that state that pain pill prescriptions are not driving the opioid epidemic. Patients with pre-existing addiction issues are more likely to become addicted to opioids and 75 percent of those who develop opioids start taking opioids in a non-prescribed manner. Furthermore, only 12 to 13 percent of ER patients who are treated for opioid overdoses are chronic pain patients.

Workers’ Compensation is traditionally an area of the law that is controlled by the states. Regulation of drugs is generally an area reserved for the federal government. Any laws imposing additional hurdles or requirements upon doctors who prescribe opioid drugs may have to come from the federal government.

Reversing OSHA Rules Will Undercut Workplace Safety

Posted on April 17, 2017 by Jon Rehm

President Trump recently signed a Congressional resolution revoking an Obama administration OSHA rule that required employers to retain records of work injuries for five and that prohibited retaliation against workers for reporting injuries. The revoked OSHA rule would have also limited drug testing of employees who reported injuries.

Debbie Berkowitz of the National Employment Law Project and a former OSHA official criticized the action because limiting the amount of time an employer must retain records about injuries because it doesn’t provide enough information to identify recurring safety issues.

At least in Nebraska, employers are required to file First Reports of Injury with the Nebraska Workers Compensation Court. The information contained in those reports serves a similar function to OSHA logs and would allow workers, unions, attorneys and or regulators to identify recurring safety problems. Those reports are also public records. I recently testified against an insurance industry supported bill in the Nebraska legislature that would have made those reports confidential records.

The recently revoked OSHA rule also would have prohibited retaliation against employees who report OSHA violations. Nebraska already has anti-retaliation laws that protect employees who claim workers’ compensation benefits that would cover many cases where an employer would have to record an injury for OSHA. My opinion is that the OSHA General Duty clause which states that employers have a duty to provide a workplace free of recognizable hazards provides additional anti-retaliation protections to Nebraska employees through our state whistleblower statute. But the revocation of the OSHA anti-retaliation rule may weaken those protections.

The OSHA record keeping/anti-retaliation rule was revoked through the Congressional Review Act. You can read more about that law works here. Congress and President Trump have also revoked an executive order that would have prevented employers who violated fair employment laws from obtaining federal contracts. You can read more about that rule here.

Welders Exposed To Increased Risk Of Parkinson’s Even If Manganese Within Legal Limits

Posted on February 16, 2017 by Jon Rehm

Welders have an increased risk of Parkinson’s even if manganese exposure is within legal limits according to a recent article in the on-line journal Neurology, which is the journal of the American Academy of Neurology.

Welders who did flux core arc welding in confined spaces were particularly vulnerable to Parkinson’s according to the study. Workers in Nebraska who would attempt to get compensation for manganese exposure would face problems if the onset of symptoms happened after an employee stopped working. A court case in Nebraska held that an employee who didn’t experience symptoms of an occupational disease until after he retired was not entitled to be compensated because he wasn’t earning wages when the injury manifested. Welders and others who are exposed to manganese on a regular basis should recognize the early symptoms of Parkinson’s such as tremors, difficulty sleeping, constipation and loss of smell and report these symptoms to their doctors and employers as soon as possible so they can be treated under workers compensation and receive workers compensation disability benefits.

The study comes on the heel of a final flurry of OSHA rule making at the Obama administration. In May 2016 OSHA finally adopted a silica exposure rule for workers exposed to sand particles which can cause lung problems. Earlier this month OSHA lowered exposure thresholds for berrylium which is another pulmonary hazard, particularly for construction workers.

The example of beryiluim could explain why exposure to manganese levels at supposedly safe levels can lead to occupational disease. Those supposedly safe levels of exposure may not actually be safe. Another explanation about why supposedly safe levels of manganese lead to Parkinson’s could be found in the practices of the coal industry. Howard Berkes of NPR and Ken Ward Jr., author of the excellent Coal Tattoo blog for the Charleston (WV.) Gazette Mail teamed up to report on how coal companies would fudge coal dust level testing to make it appear that miners were exposed to much lower levels of coal dust than they were actually exposed.

OSHA’s rules could also be reversed by Congress under the Congressional Review Act. In 2001, the OSHA ergonomics rule that would have reduced musculo-skeletal injuries was reversed under this law.

Workplace Safety Rules Could Be Reversed via Congressional Review Act

Posted on January 26, 2017 by Jon Rehm

In 2001, President George W. Bush, a Republican, overturned an Occupational Safety and Health Administration ergonomics rule designed to prevent repetitive stress injuries that was implemented by President Bill Clinton’s Labor Department, as he was Bush’s Democratic predecessor.

Around 16 years later, history seems poised to repeat itself.

A slew of workplace safety regulations regarding beryllium exposure, reporting of injuries, mine safety, and chemical storage implemented by President Barack Obama’s Department of Labor seemed poised for reversal by President Donald Trump’s administration that is eager to rollback Obama-era regulations through the Congressional Review Act.

The Congressional Review Act provides Congress a way to disapprove any regulation within 60 days of it being deemed final. But as pointed out in an explainer piece from the right-wing Heritage Foundation, Congress has 60 legislative days to disapprove a regulation. Sixty legislative days could be six to seven months in real time because of frequent congressional recesses. The act also restarts the 60-day clock for final rules that are implemented within the last 60 days of the previous legislative session. Heritage estimates that rules finalized back to June 3, 2016, could be subject to review.

Supporters of Obama-era workplace safety rules cannot rely on Senate Democrats to filibuster resolutions under the Congressional Review Act because the legislation does not allow for filibuster and has streamlined procedures for allowing legislation to be pulled out of committee.

Fortunately or unfortunately, depending on your perspective, the Congressional Review Act doesn’t allow rules to be bundled together. Congress must consider killing each regulation with a single piece of legislation. This feature of the Congressional Review Act may explain why the Clinton ergonomics rule was the only rule actually killed by Congress under the Congressional Rule Act. Finally, the Congressional Review Act prohibits an agency from proposing a substantially similar rule, which could explain why the Obama administration never tried to revive the Clinton-era ergonomics rule.

Labor reporter Mike Elk, editor of Payday Report, is one of the few reporters or writers drawing attention to the fact that Obama-era workplace-safety rules are seriously vulnerable to reversal in the Trump administration. Elk’s reporting details how the chemical industry weakened rules on chemical storage after the West, Texas, chemical explosion and how the Obama administration allowed final approval of the rule to be pushed back to where it would be vulnerable to reversal under the Congressional Review Act. In some fairness, delay by OSHA could partially be explained by budget cuts to the agency by congressional Republicans.

I would encourage our readers to monitor this firm’s social-media feeds and my personal Twitter account, @JonRehmEsq to keep track of Congressional Review Act legislation regarding workplace safety. I would urge readers to contact their members of Congress and express their opposition to any proposed rollbacks of workplace-safety rules.

Chemical Exposure in Chicken Plants

Posted on December 29, 2016 by Jon Rehm

Several members of Congress have written to Secretary of Labor Tom Perez, Secretary of Agriculture Tom Vilsack and Secretary of Health and Human Services Sylvia Burwell regarding the danger of the chemical PAA, which is used to sanitize chickens in poultry plants.

According to The Pump Handle blog written by occupational health expert Celeste Monforton, the increase in the use of PAA is linked to the Department of Agriculture’s “modernized inspection” system. Though meatpacking is well known for the prevalence of musculoskeletal injuries, chemical exposure is a less well-known, but similarly serious hazard, to meatpacking workers, which has been recognized by the Occupational Safety and Health Administration.

The hazards of chemical exposure are not limited to meat-processing workers. Chemical exposure fatalities are too common in rural America. Recently, a worker on an industrial cleaning crew in Beatrice, Nebraska, was killed from inhaling industrial cleaning chemicals. In October, a resident of northeast Nebraska was killed after inhaling chemicals from a leak in anhydrous ammonia pipeline. That same month, 125 residents of Atchison, Kansas, sought treatment for inhalation of chlorine gas from an explosion at a distiller.

While chemical exposure can often result in sudden death, ongoing exposure to chemicals can also create injuries that may not be apparent for years after the exposure. Unfortunately, Nebraska limits the ability of workers to recover for such injuries.

The letter about the hazards of PAA was written to outgoing cabinet members. The new Trump administration is expected to have a less-aggressive approach toward regulating the workplace. Hopefully the new administration will take the threat posed by hazardous chemicals in the workplace seriously.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: Workplace Injury

Lincoln Vital Signs 2017 Report Omits Workplace Injury Statistics

What Was The Big Deal About The Eclipse?

A More Dangerous And Demanding Future For Retail Employees?

Opioids And Doctor Choice

Reversing OSHA Rules Will Undercut Workplace Safety

Welders Exposed To Increased Risk Of Parkinson’s Even If Manganese Within Legal Limits

Workplace Safety Rules Could Be Reversed via Congressional Review Act

Chemical Exposure in Chicken Plants

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