NCCI Reports Workers Compensation Claims Continue to Decline

A report issued by a national workers' compensation rating organization, NCCI Holdings, Inc (NCCI) disclosed that workers' compensation claims frequency is declining.

"Preliminary results indicate a decline of 4.0% for 2008. This is on the heels of a 2.6% drop in claim frequency in 2007 and it extends a trend that started in the 1990s. While the overall decline is widespread .... high-cost Permanent Total claims have emerged recently as a noticeable exception to this decline."

The key finding of their analysis were:

• Over the last five years, there were significant declines in total lost-time claims frequency for all industries, geographic regions, and employer sizes
• The number and frequency of Permanent Total claims have increased significantly over the last four years, with all major causes of injury contributing to the rise
• The rise in Permanent Total claims appears to be driven primarily by workers age 50 or under
  
• While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes

Fatal Injuries Decline to The Lowest Level in 36 Years

The US Bureau of Labor Statistics has announced that that number of fatal on the job injuries has dramatically declined dramatically. It is now at the lowest level in any year since it began reporting statistics in 1992.

EIRSA’s Reach Shortened by the US Supreme Court

The US Supreme Court denied certification in Silverleaf v Resorts, Inc. v. McAteer, 128 S.Ct. 2884, and allowed to stand a 5th Circuit decision, McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411 (C.A.5-Tex. 2008) ,that held that an employee’s state law negligence claim against her employer for the failure to maintain a safe workplace were not preempted by the Employee Retirement Income Security Act (ERISA]. The employee’s action was improperly removed on theory based on ERISA preemption. The employee was required to waive participation in the State of Texas’ workers compensation program in order to participate in the employer’s EIRSA plan. The election made ERISA the exclusive remedy for any on-the-job-injuries.

In the decision rendered by the 5th Circuit, the Court held that RISA does not preempt state law negligence claims relying upon its prior decision in Hook v. Morrison Milling Co., 38 F.3d 776 (C.A.5-Tex. 1994).

The employer, Silverleaf, was a non-subscriber to the Texas workers’ compensation plan and had stabled an ERISA governed plan to provide benefits to employee in the event of a job-related injury and provide for the arbitration of disputes regarding benefits.

Does OSHA Know Its Numbers: Questionable Counting of Workplace Injuries and Accidents

A debate is occurring in the occupational health community over whether or not the validity of the statistics produced by the Occupational Safety and Health Administration (OSHA) is accurate concerning their reporting of data in recent years that that reflects a decline in occupational injuries and illnesses. Charged with a record-keeping in 1995 OSHA has reported a constant decline annually in its statistical reports.

The agency's recent reporting has become the subject of an analysis by scholars who conclude that the substantial declines in the number of injuries and illnesses merely correspond directly with changes in OSHA's recordkeeping requirements. The report goes on to illustrate that the most significant changes in employment, production, and OSHA enforcement activity, and in fact sampling error just do not explain the large decline. The scientists report that the decline of 2.4 million injuries and illnesses were in fact statistically inaccurate. Over 83% of the decline can be attributed to merely the change in OSHA's recordkeeping requirements.

Labor Day: Miller Launches Map of Workplace Fatalities

This Labor Day, Let's Redouble Effort to Improve Worker Safety, Says Chairman Miller Miller also launches interactive map of workplace fatalities

WASHINGTON, D.C. - To honor America's workers this Labor Day, the country should commit to stopping the preventable toll of workplace deaths, injuries, and illnesses that affects workers across industries and occupations each year, said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. To highlight the dangers that many American workers face on the job, Miller today launched a new interactive online map
(http://edlabor.house.gov/issues/workerdeaths.shtml) that enables people to learn about many of the workplace fatalities that have occurred in their own communities this year.

"Each year, thousands of American workers die on the job. Sixteen workers are killed in workplace accidents each day. Ten times that many die of occupational diseases caused b y hazardous substances like asbestos. And every 2.5 seconds, a worker is injured in the United States," said Miller. "This grim toll includes construction workers, public safety workers, and workers at chemical facilities and oil refineries. It includes people who spend most of their time working outdoors, as well as people who work inside office buildings, manufacturing plants, and stores. It in cludes young and old workers. There are simply too many American workers, from all walks of life, who get injured, sick, or killed on the job. On this Labor Day, we should commit ourselves to doing everything we can to improve safety in the workplace."

On August 9, the U.S. Labor Department reported that 5,703 workers died in workplace accidents in 2006. Today, Miller launched an online map of worker fatalities that he hoped would remind Americans of the urgent need for increased efforts to eliminate unsafe conditions on the job. The map relies on published news reports in 2007 to show worker fatalities
nationwide, and it includes information about the workers' occupations and causes of death. The map represents roughly 10 percent of the total number of on-the-job fatalities so far this year.
"The tragedy at Utah's Crandall Canyon Mine reminds us of the dangers that too many workers face every day. It is my hope that the launch of this map will help policymakers and the public understand the extent of workplace fatalities in this country and the importance of acting aggressively to improve workplace safety," said Miller.

Earlier this year, U.S. Rep. Lynn Woolsey (D-CA), chairwoman of the House Subcommittee on Workforce Protections, and U.S. Rep. Phil Hare (D-IL), a member of the subcommittee, introduced legislation to reduce workplace fatalities, injuries, and sicknesses. The Protecting America's Work ers Act (H.R. 2049) would boost workplace safety by strengthening and expanding the Occupational Safety and Health Act. Specifically, the legislation would:
Apply federal safety standards to workers who are not currently covered, including federal, state, and local employees, and some private sector employees;
Increase penalties against employers for repeated and willful violations of the law, including making felony charges available when an employer's repeated and willful violation of the law leads to a worker's de ath or serious injury;

Better protect workers who blow the whistle on unsafe workplace conditions;
Enhance the public's right to know about safety violations; and
Make clear that employers must provide the necessary safety equipment to their workers, such as goggles, gloves, respirators, or other personal protective equipment.
Miller also said that the Bush administration must do more to vigorously enforce workplace safety laws.

"In hearings held earlier this year, witnesses told the committee that both the U.S. Occupational Safety and Health Administration and the U.S. Mine Safety and Health Administration are not doing enough to update basic workplace safety standards and that the agencies have shifted their focus from enforcing the law to providing companies with so-called voluntary compliance assistance," said Miller. "It is well past time that the Bush workplace safety agencies stop fiddling while workers die. They must aggressively enforce the laws they swore to uphold. We must do more to defend the right of all workers to a safe workplace."

To visit the map, click here.: http://edlabor.house.gov/issues/workerdeaths.shtml

For more information about the Protecting America's Workers Act, click here.
http://www.house.gov/apps/list/speech/edlabor_dem/rel042607.html

For more information about worker safety issues, click here.
http://edlabor.house.gov/issues/workersafety.shtml

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Jon L. Gelman, Attorney at Law
1450 Valley Road, 1st Floor
PO Box 934Wayne NJ 07474-0934
973 696-7900 tel - 973 696-7988 fax
www.gelmans.com