You and the Law



News from OSHA, Workers Comp, etc.

By: Doug Ehlke

Tuesday, March 1, 2011

• The U.S. Department of Labor (DoL) rescinded its proposed new noise-standard “feasibility” interpretation, which would have required employers to implement costly engineering or administrative controls rather than rely on personal protective equipment to reduce noise exposures.

• OSHA withdrew plans to develop a new ergonomics standard.

• OSHA seeks to limit its voluntary consultations program by proposing to define new events that will allow an ongoing consultation visit to be terminated, or the employer’s deferral status from enforcement inspections to be revoked, and reduce the length of the deferral period to a maximum of one year.

• The department reportedly has limited the maximum citations penalty reduction authority of its OSHA area offices to 40 percent of its original proposed penalty.

Wrongful Dismissal

A Kentucky Federal District Court Judge held that a fired healthcare worker could not sue his exemployer for being terminated after complaining about a workplace safety violation. The court reviewed the OSHA Act and upheld the required statutory procedure that employees’ only Federal OSHA Act remedy is to file a complaint with the U.S. DoL, which then decides whether an investigation is appropriate. Only the Secretary of Labor can bring a civil suit as a party under OSHA.

Workers Comp MRSA Case

Oregon’s Court of Appeals upholds comp benefits to an employee who developed an MRSA infection several days after cutting his hand on the job. The comp-insurance carrier argued that the subsequent infection should be rejected because the deadly bacteria may have existed on the employee’s skin before the injury. However, the Appeals Court relied on the worker’s infection expert who testified that the incident on the job broke the protective barrier of the skin, allowing the MRSA present on the skin surface to enter and invade the deeper tissues. SAIF Corp. v. Pepperling, No. A141905 (Sep. 1, 2010).

Workplace Violence by Coworker; Benefits Allowed

Minnesota’s Workers Comp statute, like nearly all others, requires benefits to be paid for employee injuries or death which arise “out of and in the course of employment.” But attacks “for personal reasons” are exempted by statute.

So when does an assault at work become job related? The U.S. Court of Appeals for the Eight Circuit, interpreting Minnesota State workers compensation laws, defined the work-related key fact issue as “not whether an employee injury merely occurred at work, but whether the employee was injured while at work, in touch with associations and conditions inseparable from it.”

Under this test, a key fact becomes whether the coworking employee victim and the attacker had contact or disputes a from work or whether stewing process occurred in disputes at the worksite. In this case, the facts showed that a nurse practitioner was attacked at work and had no contact with the reported attacker a from the worksite. The dispute festered after the injured employee had reported the attacker earlier to clinic supervisors for specific work reasons, such as allegedly inferior job performance. MF


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