Archive for April, 2018

Preventing the Unthinkable: Putting the Brakes on Health Care Workplace Violence

Massachusetts workers' compensation attorneyMost of us think of needing to go the hospital only in times of an emergency, whether that’s an automobile accident or due to an injury on the playing field. Expectant mothers are both looking towards the birth of a healthy child and readying themselves for the unimaginable pain of labor and childbirth. Elderly people worry about falls and collapses. In each of these cases, we think about the healing we’ll receive at the hospital in the wake of an injury or illness.

Preventing injuries to healthcare workers caused by violence

However, what we rarely think about is injury caused to the EMTs, nurses, and physicians themselves who provide healthcare to us. Yet acts such as this occur with such frequency that the Health Care Workplace Violence Prevention Act was introduced in the U.S. House of Representatives on March 8th. This proposed bill would enable OSHA to create a commonsense standard policy which would require that healthcare facilities would develop and implement facility- and unit-specific workplace violence prevention plans. The legislative bill was introduced by Representative Ro Khanna (D-CA) along with the support of 12 other House Democrats in order to bridle workplace violence in healthcare facilities nationwide.

The Bureau of Labor Statistics reports in the Census of Fatal Occupational Injuries that 58 workers died due to results of workplace violence from 2011 to 2016. The Government Accountability Office also cites a 2016 study in which healthcare workers employed at inpatient facilities were 5 to 12 times more likely to experience workplace violence than all other workers combined. That element of vulnerability regarding healthcare workplace violence is a cause for concern and for legislative action.

A safe environment for healthcare workers

The state of California enacted regulations in 2014 which acted as a precedent for Rep. Khanna’s Health Care Workplace Violence Prevention Act. The California bill directed Cal/OSHA to create a workplace violence prevention standard. The law mandates all healthcare facilities in California to have developed and issued plans to prevent workplace violence and to ensure safety of both patients and workers by April 1, 2018.

Khanna’s bill applies the same concept at the national level. Input from physicians, nurses, and custodial workers regarding violence in the workplace would inform the creation and implementation of comprehensive violence prevention plans. The bill also emphasizes the basic elements of prevention, training, and worker participation. The definition of workplace violence is broadened to include both physical acts of violence and threats of violence. The bill emphasizes the importance of staff as a significant element in violence prevention and response to violence itself.

Khanna admonished in a March 8th press release that “health care workers, doctors, and nurses are continuously at risk of workplace violence incidents—strangling, punching, and other physical attacks—that can cause severe injury or death.” Khanna continued, “This is simply unacceptable. The Health Care Workplace Violence Prevention Act puts a comprehensive plan in place and is a national solution to this widespread problem modeled after the success seen in California.”

National Nurses United, the nation’s largest union of registered nurses, offered strong support. NNU Co-President Deborah Burger advocated in a press release that “under the proposed federal standard, hospitals would need to assess and correct for environmental risk factors, patient-specific risk factors, staffing and security system sufficiency. There are a number of interventions that can reduce violence in the hospital.”

“For example,” Burger continued, “affixing furniture and lighting so they can’t be used as weapons, maintaining clear lines of sight between workers while they are caring for patients, and providing easy access to panic buttons or phones to call for help. It is imperative that nurses, doctors, and other healthcare workers, along with security staff and custodial personnel, are all involved in the development and implementation of these plans.”

Insights from workers lead to improvement of safety standards

What is key to the success of the implementation of The Health Care Workplace Violence Prevention Act is its origins—the input of physicians, nurses, custodians and other healthcare workers becomes the basis for the act itself, which gives the legislation credibility. We need to improve safety standards based on the insight of  healthcare professionals themselves—not on an arbitrary administrative or political bias.

For more than 30 years, the knowledgeable attorneys at the Law Offices of Deborah G. Kohl have been successfully helping healthcare workers and other hardworking people in Massachusetts and Rhode Island to obtain the just compensation they deserve.

If you have been injured in the workplace, you may be entitled to workers’ compensation benefits. Contact us today to schedule a free case evaluation.


State’s Top Court Weighs in on Dispute Over “Regular Compensation” for Injured Worker

Massachusetts workers' compensation attorneyRobert Vernava was injured at work in Massachusetts on June 13, 2010. Like any worker in the state who suffers from an on-the-job injury, he had a right to workers’ compensation benefits.

Vernava, who was employed by the Swampscott Department of Public Works, began collecting workers’ compensation on the day he was hurt. He also collected supplemental pay under Massachusetts law, which included two hours per week of sick or vacation pay.

The supplemental pay he received created a legal argument that eventually made its way to the Massachusetts Supreme Judicial Court, the state’s highest court. The justices ultimately determined that injured workers cannot use sick or vacation payments as “regular compensation.”

The case, called Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, involved a question about Vernava’s effective retirement date following his injury.

The following summarizes what happened – and illustrates how a workers’ compensation claim can become complicated.

It began when the Swampscott Retirement Board approved a request by the town to retire Vernava involuntarily for accidental disability, which is allowed by law. Another agency, the Public Employee Retirement Administration Commission (PERAC), found the last day Vernava received “regular compensation” was on July 7, 2012. Therefore, that was determined to be his effective retirement date.

Injured workers’ sick or vacation pay does not count as “regular compensation”

But then the Division of Administrative Law Appeals (DALA) stepped in and reversed the decision made by PERAC. Vernava’s sick or vacation pay did not count as “regular compensation” under the law, DALA concluded. He last received regular compensation on the day he was injured, which was June 13, 2010.

DALA’s decision resulted in a new effective accidental disability retirement date: Aug. 1, 2011. PERAC sought additional review from other ruling bodies, but the DALA decision was affirmed each time.

The case ended up before the Supreme Judicial Court of Massachusetts, which noted that the law defines an employee’s regular compensation as “compensation received exclusively as wages by an employee for services performed in the course of employment for his employer.”

Regular compensation shall not include “unused vacation or sick leave,” the court concluded. Because Vernava was “not merely out sick or taking a vacation,” the supplemental pay should not be considered as regular compensation. He was no longer able to perform services for his employer.

As the Vernava’s case illustrates, workers’ compensation claims can quickly become complicated. A dispute can become costly and time-consuming, and it may result in a delay in payment or a reduction in compensation.

If you or a loved one was injured on the job, you should contact an experienced workers’ compensation attorney immediately. A delay could result in unwanted complications. For a free consultation, contact our workers’ compensation attorneys serving Massachusetts and Rhode Island.

Balancing Safety and Productivity in the Workplace

Massachusetts workers' compensation attorneyBusinesses often operate in a dualistic system: they feel the need to balance productivity with employee safety and must make sacrifices. David Michaels, who served as Assistant Secretary of Labor for OSHA from 2009 to 2017, has had a great deal of experience with that balancing act and has poured much of what he learned into an article published by the Harvard Business Review.

In the article, he argues that safety should not be viewed as a single system offset by systems such as sales and production but must be an integral part of a company’s DNA in order to truly yield a safe workplace. He then goes on to give safety advice to businesses, not in the form of specific action steps, but with an eye to the core of a company’s operations.

Corporate Safety Systems

One point Michaels focuses on is that accidents and injuries are rarely the fault of a single human error, and discourages blaming employees for accidents that could have been prevented with more organizational planning. There are risks inherent to all workplaces, and these risks will vary by a multitude of factors. A company committed to safety must be vigilant about the dangers posed in their specific operation and establish systems that will prevent a single human error from resulting in an injury or death. This includes taking all injuries seriously, possibly even ensuring that upper management is made aware of them, and that such events are thoroughly investigated.

Michaels notes that many workplace safety systems rely on data that comes after an accident, such as injury reports and OSHA records. Injury rates should not be ignored, they have their place, but that place is not at the center of a company’s safety plan. That spot should be reserved for data that actually comes before an accident. These are called leading indicators, and may include hazard identification, near-miss reports, identification of potentially unsafe conditions, and other factors specific to a company’s operational needs. Encouraging employees and direct management to spot and report conditions that may lead to an accident, and then quickly and effectively correcting those conditions, helps employees invest more in their company and reduce, or eliminate, injuries before they happen.

When an employee suffers a severe or life-threatening injury at work, their employer has failed them. Whether it is a breakdown of good systems or a lack of a good system to begin with, the employer must be held accountable for their part in causing the accident. If you have been the victim of your employer’s insufficient safety planning, you may be entitled to workers’ compensation. Contact us today so we can fight for the justice you deserve.