Nebraska Governor Pete Ricketts (left) with former EPA Administrator Scott Pruitt (center) at a meeting in Lincoln last month
Regular readers of this blog know that workplace safety is regulated by the state and federal governments But even within the federal government, agencies besides OSHA regulate workplace safety. The United States Department of Agriculture (USDA) and Environmental Protection Agency (EPA) have proposed rule and procedure changes that could have an impact on workplace safety.
The delays in implementation of the chemical plant and chemical handling training rules have both been subject to court challenges. If the USDA approved an increase in line speed for pork plants, that change would likely be challenged in court as well. Though the Supreme Court is viewed as friendly to business, the court is open to arguments that the actions of administrative agencies can violate the constitutionally-mandated separation of powers between the executive and legislative branch. In other words court challenges to changes in USDA and EPA rules could succeed.
The chemical safety rules are also an example of how delay of a rule or implementation of a rule can effectively kill a rule. EPA Administrator Scott Pruitt has been the target of well-deserved criticism of his administration of the agency. But, as pointed out by Mike Elk of Payday Report, the Obama administration slow-walked some chemical safety rules which them vulnerable to repeal and delay by the Trump administration.
A commenter on our firm’s Facebook page stated the use of proper body mechanics will prevent nurses from getting injured. There is some truth to that statement, but there are many ways, probably not limited to this list, that nurses can get injured that aren’t related to lifting at all. Here a few I’ve encountered recently:
Inadequate staffing – There is a strong correlation between staffing levels and nursing injuries. Nurses, especially CNAs, may be forced to lift or move patients on their own because of inadequate staffing or lack of equipment. Nurses may also be forced to prevent patients from suddenly falling. Use of proper lifting techniques may not be possible in such situations.
Patient attacks – Studies show patient attacks on nurses are on upswing. I see a lot of this in nurses that work in mental or behavioral health. Even they aren’t nurses, many direct care workers and human services technicians who work in mental and behavioral health are vulnerable to patient or client attack. It’s hard to argue a patient attack is the fault of the nurse
Slips and falls – Slip and falls are a common type of work injury. I represented a nurse working at a dialysis clinic who injured their back when they slipped in pool of urine.
Environmental and chemical exposures – In rural areas, many nursing or medical facilities are in older buildings that are vulnerable to mold and other environmental exposure. If you work in a sick building, it’s hard to argue that’s your fault.
I want to make one thing crystal clear: whether a nurse or any other employee is injured because of improper lifting technique THOSE INJURIES ARE STILL COVERED BY WORKERS COMPENSATION! (most of the time) In exchange for no-fault compensation, employees give up the right to sue their employer for negligence. While this might not seem like a grand bargain to a worker who was hurt to no fault of their own, that compromise is the cornerstone of workers compensation.
While the idea of no-fault compensation for work injuries is a winner in a court of law, the idea is more controversial in the court of public opinion as expressed on social media. There is an idea out there that filing a workers’ compensation claim is “milking the system” and that you certainly shouldn’t file a claim if you are at-fault for the injury. Statements that nursing injuries can be avoided, if nurses just use proper lifting techniques is consistent with that line of thinking.
A lot of hostility to those who bring work injury claims and their attorneys stems from concepts like “personal responsibility.” But when a nurse is hurt on the job because of understaffing, slipping on urine on the floor or a toxic building, the employee isn’t fully able to hold their employer responsible for the full extent of their harms even if the employer is fully responsible for the harm.
There is also the assumption that workers compensation claims are fraudulent. But would it be fair to assume that all nursing homes defraud Medicare and Medicaid just because one chain of homes in Florida defrauded the government $1 billion? No, it wouldn’t and the same is true for workers’ compensation claims. Ultimately entitlement to workers’ compensation benefits is determined in court where employees are subject to medical examination from doctors picked by insurance companies. Injured workers are also subject to written and oral questioning from insurance company lawyers. Employees usually have formidable barriers to win compensation in a disputed workers’ compensation case, so the idea that fraudulent claims run rampant is absurd.