Dear Group Member:
A new Assistant Secretary of Labor for OSHA has been nominated by the Biden Administration. If approved by the Senate, he will be the first assistant secretary for OSHA since 2017. Please see the attached for more details.
Thank you,
Safety Department of Lovell Safety Management Co., LLC
lsmsafetydepartment@lovellsafety.com
212-709-8899
A recent headline in the Wall Street Journal proclaimed, “COVID-19 Workers’ Claims Face a High Bar.” Acknowledging that there is no comprehensive data on COVID-19 claims, the author, utilizing some anecdotal stories along with some scattered data, implies that legitimate claims are being denied. COVID-19 may be a novel virus, but state workers’ compensation systems have decades of experience with contagions in the workplace. By their nature, infectious disease claims are complicated. It is not unusual for insurance carriers to deny a claim pending the determination of the factual circumstances that gave rise to the claim.
In New York, as anticipated, the Workers’ Compensation Board (WCB) has readily accepted COVID-19 claims from health care workers. A recent decision by the WCB provided guidance for other types of employers. The Board reversed the establishment of a COVID-19 claim, but then directed further development of the record. The decision provided a road map for claimants:
“…the claimant may show that an accident occurred in the course of employment by demonstrating prevalence. Prevalence is evidence of significantly elevated hazards of environmental exposure that are endemic to or in a workplace which demonstrates that the level of exposure is extraordinary. A claimant may demonstrate prevalence through evidence of the nature and extent of work activities, which must include significant contact with the public and/or co-workers in an area where COVID-19 is prevalent. Public-facing workers and workers in a highly prevalent COVID-19 environment are the workers who can show that the exposure was at such a level of elevated risk as to constitute an extraordinary event. Moreover, it is not necessary that the medical opinion of causally related COVID-19 be 100% certain …. Rather, it is sufficient for the claimant to provide testimony regarding the work environment along with a medical opinion that indicates that because COVID-19 is prevalent in the community and in the workplace, it is reasonably probable that it is causally related....”
A carrier does have the opportunity to present contrary evidence in opposition to the claim.
To date, we have not seen a large number of COVID-19 related claims from our 3,200 contractor and industrial clients. Fortunately, the anecdotal evidence suggests that workplace safety protocols were effective in reducing transmission of COVID-19.
The impact of the pandemic, however, has not been limited to the small number of COVID-19 related claims. The health emergency has deleteriously affected the management and outcomes of many non-COVID-19 claims. Claimants who are partially disabled are required to demonstrate “labor market attachment.” In other words, claimants must produce evidence of a genuine attempt to obtain employment within their physical limitations as determined by their medical providers. This requirement greatly inhibits abuse. Due to the disruption of economic activity caused by the pandemic, the WCB has suspended this requirement. This suspension is reasonable, but it does serve to delay claim resolutions, which result in increased claim costs.
Due to the disruptions in the medical community, needed treatment, diagnostic tests, and surgeries were delayed. The WCB necessarily loosened the requirements for claimants to periodically provide medical evidence of their disability. Carriers have also experienced delays in scheduling independent medical examinations (IMEs) with qualified consultants. These delays negatively impact the outcome of the claims. The WCB has issued an emergency authorization allowing telemedicine visits, which has somewhat alleviated these problems, but a virtual visit is not the same as an in-person physical examination.
Despite these disruptions and problems, the system, under the guidance of the WCB, promptly responded to the emergent crisis and has adapted to the situation. Through the use of virtual hearings and the implementation of several procedural adjustments, the WCB continued to meet the needs of injured workers. Benefits continued with minimal interruption. Most disputes were resolved promptly with due consideration for the rights of all parties.
April 6th & April 7th, 2021 from 7:30AM-1:30PM
To aid in your compliance with the various Federal, State and City regulations requiring this training, the LSM safety department is once again offering the OSHA 10 Hour Course. The course is provided by our OSHA certified instructors. Each employee who successfully completes the program will receive a certification card from OSHA.
Masks are required and social distancing will be obtained.
October 15th & October 16th , 2020 7:30AM-1:30PM
To aid in your compliance with the various Federal, State and City regulations requiring this training, the LSM safety department is once again offering the OSHA 10 Hour Course. The course is provided by our OSHA certified instructors. Each employee who successfully completes the program will receive a certification card from OSHA.
Please contact Ms. Tracy Page at (315) 731-2441 for registration. Masks are required and social distancing will be obtained.
Sometimes it is in the interests of both claimants and employers to compromise to settle a claim. For example, an employee with a diabetic foot alleged that he injured the foot at work. The employer disputed the claim, stating that no work accident occurred and that the employee’s problems were entirely preexisting. The carrier controverted the claim. There was a substantial chance that the claim could be established by the Workers’ Compensation Board (WCB) as a work injury with an aggravation of his underlying condition. In that event, the cost of the claim would exceed $100,000 for wage replacement (known as indemnity benefits) and medical costs.
The claimant, on the other hand, faced the prospect of having his claim completely denied. Rather than take the risk of litigation, both parties elected to settle the claim for $15,000, under Section 32 of the Workers’ Compensation Law. Section 32 states as follows: “No agreement or release except as otherwise provided in this chapter by an employee to waive his right to compensation under this chapter shall be valid.” It then goes on to provide a framework within which a waiver agreement can be entered into and be approved by the Workers’ Compensation Board. A carrier, including self-insured employers, and a claimant can agree to resolve a controverted claim, settle a dispute, or bring finality to ongoing claims involving permanent disabilities.
Settlements can be limited to wage replacement benefits and are referred to as “indemnity only.” The carrier will be responsible for the payment of continued medical treatment. A “global settlement” covers both wage replacement (indemnity) and medical treatment. A “medical only” settlement is possible but rarely utilized. Indemnity settlements are typically paid as a lump sum, but structured settlements, where claimants receive weekly or monthly annuity benefits, are an acceptable alternative.
Since the passage of legislation in 1980, the Federal Government has implemented a complex series of rules to make sure that workers’ compensation settlements were not shifting the medical costs of work-related injuries to Medicare. When medical costs are included in a settlement, the interest of Medicare must be considered in regard to future medical costs and past payments that Medicare may have made. A Medicare Set Aside Arrangement (MSA) is an allocation of a portion of the settlement for future medical care. When the following conditions are met the MSA can and should be submitted to Centers for Medicare & Medicaid Services (CMS) for approval: claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or claimant has an expectation of Medicare enrollment within 30 months and the anticipated total settlement amount is expected to be greater than $250,000.
The MSA is comprised of prior payments made by Medicare and a projection of future costs based on current ongoing treatment including prescription drugs. The MSA’s often have very high values. When handled properly, Medicare will assume responsibility for payment if an MSA is exhausted. Under certain circumstances, an unwise carrier may unexpectedly find itself liable for past and/or future payments.
Evidence and experience suggest that some claimants overutilize medical services in order to bolster their claims, especially if there is a concurrent third-party lawsuit. After the claimants have settled their workers’ compensation case, it is not unusual for there to be a significant drop in the utilization of medical services, and very often there is a complete cessation. Therefore, it is often preferable to settle the claims as “indemnity only,” which often reduces the propensity of claimants to seek treatment. These types of settlements avoid the added expense and complexity of the MSA.
Settlements are also often used on established permanent partial disability claims. Workers’ compensation benefits are paid weekly, over a fixed period of time. Some claimants prefer to receive their benefits all at once in a lump sum. Carriers will settle claims in a single payment, but only if such settlements offer a significant discount against the future value of the claim.
Settlements are final ten days after being approved by the WCB and will not be disturbed absent a showing of fraud or misrepresentation. When wisely negotiated, settlements offer the benefits of lowering claim costs, removing uncertainty, and reducing the cost of administering claims.
We have just been informed that the New York City Council has passed a bill postponing LL 196 full compliance deadline until March 1, 2021.
For most contractors this refers to the additional 10 hours of training.
It is expected that the Mayor will sign this bill prior to September 1, 2020.
The NYC DOB Local Law 196 currently requires a total of 40 hours of training for employees to receive their SST cards.
This includes the 30 Hours OSHA class PLUS 10 hours of additional training.
Please note, if the employee has taken the 30 Hour OSHA class, an additional OSHA 10 Hour class will not satisfy the additional 10 hours of training requirement.
As always, the Lovell Safety Management Safety Department will provide you with up to the minute details.
You can access NYC DOB approved Online training at:
OSHA 30 Hour:
www.clicksafety.com/lovell (discount automatically applied)
NYC SST-302 2-Hour Drugs and Alcohol Awareness for Construction
https://clicksafety.com/courses/detail/nyc-drugs-and-alcohol-awareness-for-construction
NYC SST-305 4-Hour Fall Prevention for Construction
https://clicksafety.com/courses/detail/nyc-sst-305-4-hour-fall-prevention-for-construction
NYC SST-307 8-Hour Fall Prevention for Construction
https://clicksafety.com/courses/detail/nyc-sst-307-8-hour-fall-prevention-for-construction
Use Discount Code PK15 for 15% off NYC-SST courses
For questions or further information, please contact the LSM Safety Department at 212-709-8899 lsmsafetydepartment@lovellsafety.com
Dear Group Member,
NYC DOB Local Law 196 currently requires a total of 40 hours of training for employees to receive their SST cards.
This includes the 30 Hours OSHA class PLUS 10 hours of additional training.
Please note, if the employee has taken the 30 Hour OSHA class, an additional OSHA 10 Hour class will not satisfy the additional
The current deadline for full compliance with LL 196 is September 1, 2020. We have been informed that the NYC Council is
As always, the Lovell Safety Management Safety Department will provide you with up to the minute details.
You can access NYC DOB approved Online training at:
OSHA 30 Hour:
www.clicksafety.com/lovell (discount automatically applied)
NYC SST-302 2-Hour Drugs and Alcohol Awareness for Construction
https://clicksafety.com/courses/detail/nyc-drugs-and-alcohol-awareness-for-construction
NYC SST-305 4-Hour Fall Prevention for Construction
https://clicksafety.com/courses/detail/nyc-sst-305-4-hour-fall-prevention-for-construction
NYC SST-307 8-Hour Fall Prevention for Construction
https://clicksafety.com/courses/detail/nyc-sst-307-8-hour-fall-prevention-for-construction
Use Discount Code PK15 for 15% off NYC-SST courses
For questions or further information, please contact the LSM Safety Department at 212-709-8899
lsmsafetydepartment@lovellsafety.com
