Page 51 - MetalForming March 2011

You and The Law
By Douglas B.M. Ehlke
News from OSHA, Workers Comp, etc.
From OSHA
• The U.S. Department of Labor (DoL) rescinded its pro- posed new noise-standard “feasibility” interpretation, which would have required employers to implement costly engi- neering or administrative controls rather than rely on per- sonal 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 ter- minated 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 Sec- retary 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 car- rier argued that the subsequent infection should be rejected because the deadly bacteria may have existed on the employ- ee’s skin before the injury. However, the Appeals Court relied on the worker’s infection expert who testified that the inci- dent 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).
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
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 con- ditions inseparable from it.”
Under this test, a key fact becomes whether the cowork- ing employee victim and the attacker had contact or disputes away 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 away from the worksite. The dis- pute 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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