The Intersection of Workers’ Compensation and OSHA: Look Both Ways Before Crossing
In many ways, workers’ compensation (WC) and the OSHA are very different. WC is a statutory compensation scheme designed to limit an employer’s liability in exchange for more expedient payment of medical expenses, wage replacement, and death benefits. Most of these individual state-based compensation acts were in place long before OSHA. OSHA compliance and related issues are often marshalled by safety professionals and might be considered the pre-accident or injury prevention piece. WC is often comprised of risk management personnel and takes the stage once something goes wrong and a worker is injured. Understanding and creating a dialogue where the two intersect can prevent injuries and reduce costs, which are goals that everyone can appreciate.
What constitutes as an injury or illness differs between the two programs. A work relationship typically results within the OSHA context when there is an exposure in the work environment. Generally, all injuries and illnesses on an employer’s premises are presumed work related and work need only contribute to or aggravate the condition to establish an OSHA work relationship. WC may take a more limited view. Most states require some nexus between the work performed and the injury or illness, but the degree of connection required may vary from state to state.
The recordkeeping guidelines for OSHA-related occupational injuries and illnesses vary greatly from those required in WC. Timelines begin to run for the reporting of OSHA related injuries and illnesses from the day of the incident. OSHA requires reporting of any injury resulting in death, injuries involving lost days from work, a loss of consciousness, work restrictions or transfer to another job, diagnosis of a significant injury or illness by a physician, and other specifically enumerated outcomes such as needle sticks, tuberculosis, or hearing loss. In some states, the WC first report of injury can be used to satisfy the required OSHA 301 form. Unlike OSHA, all WC injuries should be reported to your insurance carrier, regardless of severity or treatment. In some states, there are waiting periods before benefits begin. A compensable WC injury does not necessarily equate to an OSHA recordable incident.
But what about when an injury also results in an OSHA citation? Particularly in the current culture of increased OSHA enforcement, this intersection can have immediate and long-term implications. Simply paying a citation where there is a corresponding WC injury could result in increased benefits owed in the WC matter in California, Illinois, Kentucky, Massachusetts, North Carolina, Missouri, Ohio, Utah, and Wisconsin of anywhere from 15 percent more to 50 percent more depending on the state. Further, the citation classification does not have to be “willful” or “serious” in many states for the increased benefits to be applicable. Increased WC payments can impact experience modification ratings, increasing insurance premiums. Likewise, accepting a citation can increase penalties associated with repeat or willful violations and impact premiums regardless of the WC payment. Other potential damaging implications of accepting citations include use of the citation in a civil matter, loss of insurance coverage, lost business opportunities, and even damage to public image.
Many of these costs can be reduced and avoided altogether by understanding how OSHA and WC impacts the other. This includes:
- Ensuring that safety and risk management teams have a regular and open dialogue to foster a strong organizational culture of safety by discussing near misses.
- Utilizing toolbox talks
- Identifying and correcting work place hazards
- Enforcing the use of personal protective equipment
- Conducting regular safety audits to make sure your program is working for you
- Lastly and most importantly, discussing with counsel how citations might impact your organization and strategizing with counsel in the unfortunate event of an injury involving a citation to minimize any further risk