All posts by Kit Case

Vocational Recovery Services – New Rules Proposed

New rules proposed by WA Department of Labor and Industries (L&I) would add vocational recovery services as the first services provided by vocational rehabilitation counselors (VRCs) in most State Fund cases. This would replace the current early intervention services, with similar steps to be taken. The intent is to better align the rules with the state law that places a high priority on returning a worker to employment after an injury.

Vocational Recovery Services

In recent years, L&I has made significant changes intended to reduce process delays so that vocational providers can more effectively engage injured workers, employers, and medical providers before long-term disability sets in. Reported results include higher return-to-work rates and reduced costs for L&I.

For an injured worker, the effect of these changes is that a vocational counselor is assigned to their claim early in the process. VRC’s are tasked with a multi-step effort to try to return the injured worker to employment as soon as possible after an injury, either with the employer of injury, a past employer or a new one. The VRC may obtain work and education history from the worker as well as physical restrictions from the attending physician. Any proposed job offers are run by the physician for review and approval or modifications, if appropriate.

Often, once these initial steps are done, the VRC will remain assigned to the claim to monitor progress with treatment and continue with efforts towards returning the worker to some type of work, as quickly as possible. It is not uncommon for us to see VRCs stay on a claim even when surgery is on the horizon.

Vocational Recovery Services – Review Proposed Changes

The proposed rules are available for review on L&I’s website for rule development.

The Proposed Rule Making notice, with explanations of the changes and the expected effect of those changes, can be found here. The full text of the existing rules along with proposed changes and additions can be found here.

Provide your input to L&I

Changes in vocational rules have the potential to impact the benefits received by an injured worker, both monetary and vocational. For this reason, I recommend that you review the proposed rule changes and provide your input to the Department of Labor and Industries during the public comment period, which closed on October 4th.

You may provide input in writing by email, mail, or fax through 6 p.m. on Oct. 4th. You may also participate in a public hearing at 10 a.m. on Oct. 2 at the Department of Labor and Industries in Tumwater. L&I will consider all input before preparing the final rules this fall.

Asbestos violations result in large fine

Asbestos safety violations were included in the Washington Department of Labor & Industries (L&I) citation against a Bellingham-based property management company. The citation included multiple serious safety and health violations, most of which involve improper handling of asbestos and lead. As a result of the violations, Daylight Properties is facing fines totaling $185,600.

The Violations

L&I has cited the company for 33 serious and six general violations. The highest single fine was $48,000 for failure to obtain a good faith inspection before beginning asbestos removal work. The amount was based on a $600 per day fine over an 80-day time period.

Other violations included not having asbestos removal certification, not having an asbestos “competent person” on site, workers not being certified for asbestos work, and not sufficiently wetting asbestos-containing materials during removal.

Asbestos Removal Requires Safety Measures

“Improper and unsafe lead and asbestos removal is a serious problem in Washington,” said Anne Soiza, L&I’s assistant director for the Division of Occupational Safety and Health. “This company renovates old buildings which often have asbestos and lead- containing materials. There are laws in place, and we expect them to be followed to prevent exposing workers, tenants and the general public to these hazardous materials.”

Asbestos is extremely hazardous and can cause potentially fatal diseases like asbestosis, mesothelioma and lung cancer. Lead exposures have serious and permanent health effects on children and adults. Only a certified contractor who follows the specific related safety and health rules may remove and dispose of lead and asbestos-containing materials.

It’s all-too-common for contractors to conduct asbestos removal activities without the required certification, proper training, processes and equipment. It’s important for homeowners to know that if they plan to hire a contractor to remodel or renovate their home, they are required to get a good faith inspection before work begins. If asbestos is present, the contractor must be certified.

L&I Certifies Asbestos Removal Contractors

L&I has a list of certified contractors. It’s important to refer to that list because some unscrupulous contractors continue to advertise asbestos removal work even after they’ve been cited and decertified.

For some companies that do high-volume work, such as home or property flippers, even large fines are not a sufficient deterrent. Homeowners and property owners should be cautious when hiring contractors.

Daylight Properties has 15 business days to appeal the citations.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

For a copy of the citations, please contact L&I Public Affairs at: 360-902-5413.

wage theft case results in big settlement

Causey Wright is pleased to share the news of a major victory in a wage theft case, achieved by Terrell Marshall Law Group with the assistance of the Fair Work Center of Seattle, WA.

Workers Settle Lawsuit

Current and former workers at Pyramid Alehouse in the SoDo neighborhood of Seattle are celebrating long overdue paychecks thanks to a big win in court. On July 30th, a judge with King County Superior Court finalized the $450,000 settlement of a class action wage-and-hour lawsuit that workers filed against Pyramid’s ownership group, Independent Brewers United, LLC. The average award for each worker in the settlement will be about $1,000, while the highest award in the class totals more than $9,800.

Why Workers Filed Suit for Wage Theft

In the lawsuit, workers alleged several forms of wage theft and abuse during the years of 2014 to 2018. The allegations included:

  • Failure to provide meal and rest breaks
  • Failure to record and pay workers for all work hours
  • Manipulation of timesheets to delete hours worked (“time shaving”)
  • Failure to pay overtime for hours worked over 40 in a week
  • Failure to pay employees all service charges paid by customers
  • Failure to disclose to customers that not all banquet service charges collected went to the workers who provided services

In addition to paying their workers for the hours they worked, Pyramid will also be required to provide training to its workers so they know that whenever they are working, they must be on the clock.

Fair Work Center Played Role in Workers Obtaining Justice

“Class action employment cases like this help show that when workers stand together, they have the strength and the power to make serious changes in their work conditions,” said Rachel Lauter, Executive Director at Fair Work Center and Working Washington. “Fair Work Center is incredibly proud to play a role in bringing justice to workers at the Pyramid Alehouse in SoDo.”

In early 2018, workers from Pyramid Alehouse went to Fair Work Center seeking advice and support for discrepancies they were seeing in their paychecks. Fair Work Center partnered with the employment litigation firm of Terrell Marshal Law Group to bring the case on behalf of the workers, which was filed in April of 2018.

Food service workers are too often subjected to wage theft and other workplace abuses. With this settlement, we’re content the employer is being held accountable to the law and will have to change its practices. And we’re happy the workers will finally be getting paid the wages to which they’re entitled,” said Toby Marshall, a lawyer with Terrell Marshall Law Group.

Experiencing Wage Theft? Get Help!

Are you or someone you experiencing wage theft? Your time counts and you have the right to be paid for all of your work. Contact Fair Work Center if you rights are being violated at work.

The information above was provided in a press release issued by the Fair Work Center. For more information, contact the Fair Work Center at: (844) 485-1195.

McKesson Closing Everett Shop in June

Worker Adjustment and Retraining Notification (WARN)

Employment Security received a WARN for an organization in Everett.

Organization: McKesson

Expected beginning date of separations: June 7, 2019

Number of affected workers: 67

Layoff or closure: Closure

The Everett Herald reports that:

“Most of the affected workers are shipping-receiving clerks or warehouse workers. They belong to Teamsters Local No. 38, which negotiated a severance package. Some of the employees had worked there for decades.

“They were told that they could reapply, but they would have to re-apply as new employees,” said Michael Raughter, a union organizer who used to work for McKesson. “When they move down, they’re going to be non-union. Hopefully they’ll be able to re-organize.”

Read the full story…

Image credit: McKesson

Stand-Down for Safety, May 6 – 10, 2019


Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 366 of the 971 construction fatalities recorded in 2017 (BLS data). Those deaths were preventable. The National Safety Stand-Down raises fall hazard awareness across the country in an effort to stop fall fatalities and injuries.

Join the Washington State Stand Down

Falls cost. Safety pays. Choose to promote fall prevention on your job site during Safety Stand-Down weeks.

 

What is a Safety Stand-Down?

It’s when you take a break from normal work activities so your crew can focus on a particular jobsite safety topic, like training on safe use of ladders or inspection of full body harnesses.

Falls are the leading cause of death in construction, as you can see from this Washington State infographic (753 KB PDF)

Who Can Participate?

Anyone who wants to prevent hazards in the workplace can participate in the Stand-Down. In past years, participants included commercial construction companies of all sizes, residential construction contractors, sub- and independent contractors, highway construction companies, general industry employers, the U.S. Military, other government participants, unions, employer’s trade associations, institutes, employee interest organizations, and safety equipment manufacturers.

Get Involved

Start now. Any construction business in Washington State can choose how to participate and what to address. You’ll find plenty of ideas and ready-to-go resources on various topics. See the Ladder Safety Resource Guide (177 KB PDF).

Ideas for Stand Down

Stand-Down activities can range from short toolbox talks to scheduled, full-day events. Pick what’s right for your company.  Find ideas here.

Share your success stories!

Share your story on social media with the hashtags #StandDown4Safety and #StopFalls.

Image credit: OSHA

Upcoming Stakeholder Meetings: Chapter 296-880 WAC, Unified Fall Protection

Upcoming Stakeholder Meetings
Chapter 296-880 WAC, Unified Fall Protection (NEW CHAPTER)

The Washington State Department of Labor and Industries (L&I), Division of Occupational Safety and Health (DOSH), would like to invite interested stakeholders to upcoming stakeholder meetings to review our latest, revised draft of the proposed Unified Fall Protection rule.

On February 19, 2019 a CR-101 (preproposal) was filed, letting the public know we were conducting rulemaking specifically related to fall protection requirements included in Chapter 296-155 WAC, Safety Standards for Construction Work as well as several other chapters referencing fall protection requirements. This proposed rulemaking will consider changes to the rules to make them at least as effective as the Federal Occupational Safety and Health Administration (OSHA), as required by the Washington State Plan.

This rulemaking proposes to incorporate fall protection requirements from multiple DOSH standards into one chapter applicable to all industries. During public meetings held in the fall of 2016 and 2018, stakeholders supported the creation of a unified fall protection rule and believe it will be easier to implement and help protect workers from fall hazards.

Upcoming Stakeholder Meetings:

Date: Thursday, May 2, 2019

Time: 1:00 – 2:30; 12:30 pm sign-in

Location: Labor and Industries, Tukwila

12806 Gateway Drive S

Tukwila, WA 98168

Date: Wednesday, May 22, 2019

Time: 9:00 – 10:30; 8:30 am sign-in

Location: Labor and Industries, Vancouver

312 SE Stonemill Drive, Suite 120

Vancouver, WA 98684

Date: Thursday, May 23, 2019

Time: 1:00 – 2:30; 12:30 pm sign-in

Location: Labor and Industries, Kennewick

4310 W 24th Avenue

Kennewick, WA 99338

Date: Wednesday, May 29, 2019

Time: 1:00 – 2:30; 12:30 pm sign-in

Location: Enduris Training Center

1610 S Technology Blvd #100

Spokane, WA 99224

Background

On June 2013 and October 2015 DOSH received notification from OSHA relating to the Department’s fall protection standards, Chapter 296-155 WAC, Part C-1. The focus of OSHA’s position is residential construction which has both high fatality and hospitalization rates due to falls from elevation. OSHA is concerned that our fall protection residential construction standards differ significantly from their policies and standards. Their policy issues focus in the following areas: Ambiguous language with regards to skylights and wall openings, the use and strength of warning lines, alternatives to conventional fall protection – catch platforms and safety watch systems and trigger height.

A series of stakeholder meetings were held around the state in Tukwila, Bellingham, Wenatchee, Vancouver, Yakima and Spokane in the fall of 2016 extending through the summer of 2017. Through these public forums we found widespread support from stakeholders who said a single, unified fall protection standard that applied to all industries statewide would be easier to implement and help protect workers from fall hazards.

Public comments from these previous stakeholder meetings were reviewed and a revised discussion draft of the proposed rule was created. Beginning in August 2018, the department held another set of stakeholder meetings across the state in Wenatchee, Kennewick, Yakima, Bellingham, Seattle, Spokane and Vancouver. We have found through discussions in our stakeholder meetings for the Unified Fall Protection that there remains to be support for a unified fall protection standard.

NOTE: While rulemaking on Unified Fall Protection and Walking Working Surfaces are separate filings, they primarily effect the same industries. We will continue to combine the stakeholder meetings in order to accommodate the public and encourage input.

Please contact Carmyn Shute with any rulemaking or meeting questions: Carmyn.Shute@lni.wa.gov or 360-902-6081

Please contact Erich Smith with any technical questions about the Unified Fall Protection rule: Erich.Smith@lni.wa.gov or 206-515-2786

Updates regarding the rulemaking process will be posted on the Labor and Industries external website. To sign up to receive updates on this project; or, other areas, update your subscriptions, modify your password or email address, or to stop subscriptions at any time on your Subscriber Preferences Page. You will need to use your email address to log in. If you have questions or problems with the subscription service, please visit our Subscriber Help Center.

This service is provided to you at no charge by the Washington State Department of Labor & Industries.

Image credit: Safety and Health Practitioner

Ironworker Falls 80 Feet through Bent Plate Gap

The Washington Fatality Assessment and Control Evaluation (FACE) Program* has published a new Injury Narrative. The new narrative describes an incident where an ironworker fell from a roof into a debris net. 

These are one-page reports that summarize work-related incidents and list some requirements and recommendations that might have prevented the incident from occurring. For your convenience, this narrative is also available as a Slideshow intended to be used as a group discussion and training tool.

FACE is focusing on the construction industry. These narratives provide preliminary information about the incident to the interested community, similar to OSHA’s Fatal Facts and MSHA’s Fatalgrams. FACE hopes that they are used for formal or informal educational opportunities to help prevent similar incidents.

 Ironworker Falls 80 Feet through Bent Plate Gap

 

A 29-year-old ironworker was severely injured after falling through a bent plate gap and landing 80 feet below in a debris net. Coworkers rescued him from the net. He suffered numerous injuries, and still had not returned to work nearly a year after the incident.

The ironworker’s employer was a structural steel and precast concrete contractor. He had worked for his employer for over four years and he had been an ironworker for 10 years.

See the full details of the report, including safety requirements and recommendations, here.

 

 

Electrical Companies Facing Large Fines for Unlicensed, Unpermitted Work

A Minnesota company and several of its subcontractors are facing fines of $273,000 from the Washington State Department of Labor & Industries for nearly 600 instances of making illegal repairs at large retailers across Washington.

Bailiwick Services  LLC of Chaska, Minn., subcontracted with five other companies to move electrical lines, adjust menu boards at fast food restaurants, and install telecommunication equipment. L&I cited the companies for using unlicensed electrical workers and not getting permits for the jobs.

“This is about people’s safety,” said Steve Thornton, chief electrical inspector for L&I, which inspects much of the electrical work done in the state. “Employees and customers can get shocked from improper wiring, and ill-fitting electrical components can cause fires.”

Bailiwick provided electrical contractors for large chain stores throughout Washington. The list of retailers includes The Home Depot, US Bank, Dollar Tree, and restaurants such as Wendy’s, McDonald’s, and Panera. In all, there were 584 citations issued.

Bailiwick has appealed the citations, while the subcontractors have agreed to pay the penalties. The list of subcontractors and the amount of their fines include: I T Communications Inc., of Yakima, $28,500; SpringWise Facility MNGMT Inc., South Bend, Ind., $13,000; Darwin TC Group, Hillsboro, Ore., $5,000; Jones Sign Co., Inc., of DePere, Wisc., $2,500; and Rick Slape Inc., Weatherford, Texas, $500.

Thornton said along with safety, the citations help level the playing field for licensed contractors that follow the law by hiring professional electricians, who have passed a state exam. He said there’s been an increased demand for electrical work that in some cases has resulted in large retailers hiring unlicensed contractors, who often do unpermitted work at a variety of sites then leave the state.

The retail stores and restaurants where the violations occurred include locations in Bellingham, Chehalis, Everett, Kennewick, Kent, Longview, Puyallup, Richland, Seattle, Sequim, Spokane, Vancouver, Wenatchee, and Yakima.

L&I uses a special group of 11 inspectors, called the Electrical Compliance, Outreach, Regulation and Education (ECORE) team, for its investigations. ECORE issued a total of 2,976 citations against unlicensed contractors and uncertified electricians in 2018, and collected more than $2.5 million in penalties.

To find out whether a contractor is licensed, has an up-to-date workers’ compensation account, or has any safety violations pending, go to www.Lni.wa.gov/Verify.

Photo by cmziebarth on Foter.com / CC BY-NC-SA

April is Distracted Driving Awareness Month

Distracted Driving Awareness Month is observed each April to bring national attention to the hazards of distracted driving. The dangers of distracted driving are serious and the results can be severe. The National Highway Traffic Safety Administration reports that in 2016, distracted drivers caused 3,450 fatalities and 391,000 injuries on America’s roads and highways. That’s at least 9 people killed and 1,000 injured every day. Washington State Traffic Safety Council data shows that distracted driving causes 30% of fatalities and 23% of serious injuries in crashes in the State of Washington.

Operating a motor vehicle requires full attention to the road, but it’s easy to become distracted when you are driving and at the same time using a mobile device, changing radio channels, using a calculator, applying cosmetics, smoking, eating or drinking. Looking at billboards, buildings and people also causes major distractions. Texting is among the most dangerous distractions. Typing or reading a text message takes your eyes off the road for at least 5 seconds. At 55 mph, that’s like driving the entire 120-yard length of a football field with your eyes shut. Driving while texting also increases your crash risk like driving with a blood alcohol content of 1.9.

It’s the Law

In 2017, Washington State passed a distracted driving law into the rules of the road. Getting ticketed for distracted driving is expensive. Fines start at $136 and can go up to $234 on repeat offenses. The citations stay on your driving record and increase your vehicle insurance rates. Federal law also prohibits texting by interstate truck drivers and forbids companies from requiring their drivers to text while behind the wheel. In addition to disqualification, civil penalties for truck drivers can reach up to $2,750 for multiple offenses, and $11,000 for companies requiring or allowing drivers to text while driving. Over 150 law enforcement agencies across Washington State participate in the Distracted Driving Awareness Month prevention effort.

The best strategy to prevent a roadway incident is an easy one. Never take your mind off driving and always keep your eyes on the road and both hands on the steering wheel. Put away your cell phones and other handheld gadgets and objects until you are safely parked out of the flow of traffic.

Trucking companies should implement a cell phone policy in their safety program that prohibits drivers from using their cell phones while driving. Drivers also should not handle dispatching devices, maps, or food while driving.

Visit the following links to get more information and resources for distracted driving prevention:

Washington State traffic law:

Using a personal electronic device while driving

Dangerously distracted driving

Keep Trucking Safe:

Smart and safe cell phone use poster

Washington State Traffic Safety Council:

Distracted driving data, training resources and programs

Federal Motor Carrier Safety Administration:

Rule limiting the use of wireless communication devices

Distracted driving tips and training tools

National Highway Traffic Safety Administration:

Distracted driving website

National Safety Council:

Distracted Driving Awareness Month website

Distracted driving safety topics website

 

Photo by BC Gov Photos on Foter.com / CC BY-NC-ND

 

Contact an Attorney Early in Your Case for the Best Chance at a Fair Outcome

Injured worker contacts us for assistance with a mess of a case, one where decisions were made along the way – without the benefit of legal counsel – that now tie our hands and limit our ability to obtain what we otherwise would have thought to be an appropriate outcome. We do the best we can, but we wish they had reached out to us for advice earlier. This is a common occurrence for our firm, a frustrating scenario that I will dissect for you.  Here is a sample scenario, not derived from one person’s claim but a ficticious case to present common issues that arise in many complex claims:

  • Significant injury or combination of injuries/comditions, perhaps a knee injury that led to a total knee replacement procedure.
  • Difficulties recovering from surgery, such as the described total knee replacement procedure, lead to permanent limitations in mobility and function. There may be a potential argument about the level of rated permanent impairment and the amount of an impairment award to be paid at the conclusion of the claim.
  • Worker is unable to return to their job of injury, so undergoes a vocational assessment to determine if they can return to work in a physically-appropriate job with their current skill set or if vocational retraining is needed. Often, in significant injury claims, vocational retraining benefits are granted.
  • Worker is of a relatively advanced age, perhaps has a singular work history in physically-demanding line of work, and for a varitety of reasons may not want to pursue the offered retraining plan. Perhaps they don’t feel that college is a good fit for them, or they may not want to work in the intended job goal (often, “General Office Clerk” is seen as a recommended plan). The worker may have a disability pension option through their employment, and/or retirement savings, and will opt to go that route rather than participate in a retraining plan that they feel is inappropriate. Or, they think they can get back to work in a more appropriate field, even if only part-time, if they go forward on their own.
  • Their vocational counselor discusses the options before them once a retraining plan is offered: participate in the plan, receiving time loss compensation throughout; or, b) Opt out of retraining and, in exchange, receive a package that includes school vouchers equivalent to the current cost of a two-year retraining plan for their own use, a closed period of monetary benefits called a “vocational award” and equal to time loss compensation, but with payment made regardless of any return to work made, and a variety of other associated, standard benefits.
  • The worker chooses to “opt out” of retraining.  However, they do not have a full picture of their potential benefits available, because a vocational counselor can only discuss vocational options while there are other potential legal paths that can be discussed with a lawyer. Once the option selection has been made, though, many, if not all, of those legal paths disappear, even though the worker did not know of the existence of the full spectrum of options available under the law.
  • The worker then contacts a law firm for assistance, with many questions about what’s next for them, what their rights are under the law. In some cases, the options available are significantly limited by the time we get this call. Options such as a Structured Settlement Agreement (CRSSA), or an argument that a specific retraining plan is not, in fact, appropriate under the specific circumstances, or that a total disability pension is the more appropriate outcome from vocational evaluation. This analysis of options outside of the scope of a retraining plan or return-to-work outcome will not be discussed by a vocational counselor; it is outside of the scope of their assignment under your claim.

Whenever an injured worker receives advice from their doctor, their vocational counselor, their friends, co-workers or family members, they are getting only opinions, not legal advice. The giver of the advice may have the best of intentions and may have experiences that guide the forming of their opinion, but in almost all cases they do not have legal training or experience.  Workers deserve to have the benefit of legal consultation before making decisions with long-term consequences, often for not only the worker but also their spouse or family.

We have found that having contact with an injured worker early in the process gives us the opportunity to discuss the path that lies ahead, potential pitfalls, options and likely outcomes. If we can be involved with a worker during the vocational process, we can provide guidance when questions and options come up and help the injured worker make the decisions that best benefit them, taking into consideration the individual facts of their case and the legal remedies available with each possible choice.

Like most law firms that handle workers’ compensation cases, our firm offers a free consultation and case analysis. This may or may not lead to representation, but it can provide a road map for the case ahead and form the foundation of representation should it become necessary in the future. Everyone in your case has their own specialty and/or perspective – your doctor, vocational counselor, employer or other party that may be involved. You deserve to have a professional to discuss your case with to form your own plan and perspective on your claim.

Workers’ compensation claims can be very complex. Feel free to contact us today for a conversation about your case.

Photo by getoutski on Foter.com / CC BY-SA