Nonsubscriber Legal Panel for TAN Members Set for June 15

Nonsubscriber Legal Panel for TAN Members Set for June 15 – Fazio, Johnson, Hauder, Peavler and Estrada to be Featured

TAN’s Nonsubscriber Webinar Series will continue Wednesday, June 15, with the always popular and informative legal panel. This legal panel will explore the myriad of legal issues that employers are navigating in the shifting workplace landscape. 

This virtual event will feature a dynamic panel of some of the best legal minds in the nonsubscriber field, including Jerry Fazio of Owen & Fazio, Edward Johnson of the Mayer Law Firm, Bernie Hauder of Adkerson Hauder & Bezney, Robert Estrada of Blanco Ordonez Mata & Wallace, and Donna Peavler of Peavler Briscoe.

Hear updates on:

  • COVID-19 litigation in Texas
  • How courts have ruled to date on the Pandemic Liability Protection Act
  • Nonsubscriber employers’ legal duty to provide a safe workplace if they do not control the premises
  • Defending cases when the plaintiff attorney waives past medical expenses to keep the jury hearing how nominal they were

This is not an event to be missed and is FREE for all TAN members. Make plans to attend and register today. You may click here to register.

Survey Measures Texans’ Feelings on Status of COVID

COVID-19 may not be through with Texas, but a recent poll suggests most Texans are ready to move on from COVID-19.

The latest University of Texas/Texas Politics Project poll, conducted April 14-22, 2022, shows the number of registered voters in Texas who consider COVID-19 “a significant crisis” dropped to 22% in April, compared to 43% just two months earlier in February.

As with previous polls, the level of concern about coronavirus varies by political affiliation. Among Democrats, 36% say COVID-19 is a significant crisis, down from 66% in February. Meanwhile, 61% of Republicans say COVID-19 is either a minor problem, or not a problem at all, up from 39% in February.

When asked how concerned they were “about the spread of the coronavirus in your community,” 28% were either “extremely” or “very concerned,” down from 39% in February. The number of respondents answering “not very” or “not at all concerned” increased to 45%, up from 31% in February.

When it comes to measures to prevent the spread of COVID-19, 62% reported that they are staying away from large groups, and 51% reported “wearing a mask when in close contact with people outside your household.” Nearly 70% of respondents say they have received a COVID-19 vaccine, although 90% of those who say that they have not been vaccinated say that they do not intend to be either.

The poll was conducted among 1,200 registered voters in Texas and has a margin of error of +/-2.83%. Data was collected over the internet by YouGov.

Poll Reflects Texans’ Outlook on Future and Top Issues

New polling from The University of Texas/Texas Politics Project finds Texans are pessimistic about the future, with 51% saying the state is on the wrong track, and 66% saying that the country is also on the wrong track.

The poll was conducted April 14-22, 2022, among 1,200 registered Texas voters. It shows Texans believe immigration and border security are the state’s top problems, and that inflation and the economy are creating hardships. 

One in five Texans say border security is the state’s top concern, while 14% cite immigration.

The poll also found 43% of respondents say their family’s economic situation is worse compared to last year. That’s the highest percentage in the 13-year history of the poll. Nearly 9 in 10 voters say they have noticed rising prices, and 55% say those price increases have had a major impact on their household finances. 

Other findings include:

  • A majority of Texans, 51%, agreed with the statement that “Parents of children in Texas public schools have enough influence on what their children are taught,” while 35% disagreed. 
  • Seventy-four percent of Democrats said that either Black people (43%) or transgender people (31%) face the most discrimination in America today, while among Republicans, 65% said that either white people (34%) or Christians (31%) face the most discrimination.
  • Greg Abbott led Beto O’Rourke 48% to 37% among the poll’s sample of registered voters, with 16% uncommitted (7% opted for an unspecified “someone else”; 9% said they “haven’t thought about it enough to have an opinion”). 

The poll features questions about a range of subjects including COVID-19, abortion, public safety, K-12 education, discrimination, and the Russian invasion of Ukraine, as well as assessments of political leaders and views of the 2022 election in Texas. It can be found here.

Report From Labor Group Cites Texas Workplace Fatalities

The number of workplace fatalities in Texas dropped to 469 in 2020 from 608 the previous year, according to information in the AFL-CIO’s “Death on the Job: The Toll of Neglect,” published annually on Workers’ Memorial Day to highlight state and federal data on worker protections, work-related deaths, and injuries and illnesses.

The Texas numbers represent 3.9 worker fatalities per 100,000 workers in 2020, slightly higher than the national rate of 3.4 per 100,000 workers, and lower than the state’s 2019 incident rate of 4.6 fatalities per 100,000 workers.

Nationally, there were 4,764 workplace deaths in 2020, compared to 5,333 in 2019.

States with the highest fatality rates in 2020 were:

  • Wyoming (13.0 per 100,000 workers)
  • Alaska (10.7 per 100,000 workers)
  • South Dakota (7.8 per 100,000 workers)
  • North Dakota (7.4 per 100,000 workers)
  • West Virginia (6.6 per 100,000 workers)

According to the report, the Occupational Health and Safety Administration had 95 workplace safety and health inspectors in Texas during fiscal year 2021 who committed 3,599 workplace safety and health inspections. The report says the average penalty assessed in Texas for serious violations of the Occupational Safety and Health Act during that period was $3,387, compared to the national average of $3,315.

The average penalty per fatality investigation in Texas was $9,120, compared to $11,626 nationally.

The report is available here.

ASSP Releases New Standard for Measuring Health and Safety

The American Society of Safety Professionals (ASSP), a safety professional organization and standards-setting body, has released a new standard to help organizations measure and improve the efficacy of their health and safety initiatives. This voluntary standard, “The American National Standards Institute (ANSI)/ASSP Z16.1-2022, Safety and Health Metrics and Performance Measures,” is designed to be used by organizations of all sizes, types and risk levels. It outlines requirements and expectations for organizations to use in creating measurement systems for assessing performance, reducing risks, identifying gaps, and driving improvements around health and safety.

ASSP’s new standard replaces the previous ANSI Z16.1 standard by the organization, “Method of Recording and Measuring Work Injury Experience.” That standard was first released in the 1960s and emphasized using lagging metrics to measure health and safety performance. Lagging metrics are data about outcomes, such as injury and illness statistics and other types of incident-rate statistics.

In the new standard, ASSP encourages organizations to look not just at lagging metrics but also at leading metrics, which track the success of preventive measures, as well as impact metrics, which demonstrate the business impact of health and safety initiatives. ASSP believes that this more comprehensive approach to evaluating risk management factors and safety management systems will be more effective for organizations in reducing workplace injuries and illnesses. 

Relying on lagging metrics alone means that an organization is only able to improve safety procedures after injuries or illnesses have occurred. By looking at lagging metrics alongside leading metrics and impact metrics, however, businesses can better predict and more quickly track the efficacy of health and safety programs. This will help businesses to better understand not just what is happening but why, which in turn will help them to prevent many workplace injuries and illnesses from occurring in the first place. 

ASSP also recently revised two other workplace health and safety-related standards. They are “Z117.1-2022, Safety Requirements for Entering Confined Spaces,” which outlines minimum safety requirements for workers entering, exiting and working in confined spaces, and “ANSI/ASSP A1264.2-2022, Reducing Slip Missteps on Walking-Working Surfaces,” which provides guidance for reducing slip-and-fall injuries.

Adoption of these standards is voluntary, but the standards are designed to provide guidance in areas where federal regulations do not exist or are outdated. By proactively adopting the new Z16.1 standard, employers can better protect both workers and businesses.

Combining Physical and Behavioral Therapy Proving Effective in Pain Management

A new study suggests a combination of physical therapy, talk therapy and pain education leads to “clinically important improvements in physical function” after two months, compared with physical therapy alone.

Researchers from Canada and Australia argued that fear avoidance beliefs, depression, anxiety, catastrophic thinking, and familial and social stress are highly prevalent in adults with chronic low back pain and can increase the risk of physical disability, reduce functional capacity, cause individuals to avoid usual activities including work, and affect societal and recreational participation.

Using data from 97 randomized and controlled trials published between 2011 and 2012 that covered more than 13,000 participants and 17 different treatments, the researchers concluded using behavioral therapy and physical therapy together helped with pain intensity up to 12 months into treatment. Educating patients about pain and treatment helped with physical function up to six months into treatment. 

The study found that for people with chronic, nonspecific low back pain, psychological interventions are most effective when delivered in conjunction with physiotherapy care.

Psychological interventions for chronic pain conditions typically aim to reduce pain-related distress and disability by changing patients’ negative beliefs, behaviors and attitudes through a combination of principles and strategies informed by psychological theories.

The study was published online in the journal BMJ and is available here.

In April, Steven Clark of Select Medical led the first of TAN’s 2022 nonsubscriber webinars with a talk that focused on psychologically informed physical therapy. For more information on the topic, you may contact Steve at

Great Resignation Brings Work Injury Risks

Besides leaving organizations with employment gaps to fill, the Great Resignation has increased the probability of on-the-job injuries and safety hazards as jobs are filled with less experienced workers.

A recent study in the Harvard Business Review found resignation rates during the COVID-19 pandemic were highest among employees 30 to 45 years old, the demographic with the best on-the-job safety performance. Now, as organizations restaff, they are likely to attract candidates from different industries or workers who left during the onset of the pandemic and are reentering the workforce without recent experience or training.

But there are other factors to consider. The MIT Sloan Management Review reported earlier this year that most of the turnover during the Great Resignation was fueled by toxic work cultures. Workers said they didn’t feel supported and safe.

Colin Duncan, CEO of SEAM Group, told Occupational Health & Safety magazine that employers should consider regular assessments to determine how well-prepared for work employees feel and follow through on the findings. When workers can help identify hazards, they appreciate being part of the process.

Duncan suggested that employers consider ensuring safety professionals communicate frequently with production and maintenance peers about priorities and issues. Ensure the resources required to carry out daily maintenance activities are available. 

High turnover also increases the likelihood of unplanned work, which increases the possibility of on-the-job injuries as maintenance becomes less consistent and reliability issues surface.

The Rising Tide of Depression and Its Impact on the Workplace

The COVID-19 pandemic began early in 2020 and caused or contributed to millions of fatalities around the globe. Now, just as the COVID crisis seems to be easing, American workers are having to reckon with images of a brutal war abroad and with economic turbulence at home. One result is that employers are facing a workforce that is more stressed, anxious and occasionally depressed than ever before.

A precise calculation of the extent of worker depression is hard to come by. For one thing, “depression” is difficult to define. For another, people don’t always care to admit they’re having mental health issues. Still, research from Boston University School of Public Health reveals incidents of depression in the United States started rising with COVID infection rates in 2020 and worsened in 2021, affecting 1 in every 3 American adults. According to a survey done by Lyra Health, 31% of workers reported that their mental health declined in 2021. Of all workers surveyed, 84% reported they had at least one mental health challenge in 2021, and 33% of workers sought care. 

Employers view these numbers with alarm. Aside from concern for employee well-being — the desire to see good people thrive — there’s another set of issues. Depression can lead to absenteeism, poor job performance, and an increased risk of on-the-job accidents. It can also spur employees to find another workplace, leaving employers to deal with high worker turnover and the costs of training and supervising new executives, managers and associates. While the Great Resignation may be ebbing, surveys still indicate that workers are increasingly willing to move on to different jobs, sometimes even in different industries.

Many employers are investing in means to aid employees with depression and related issues. Perhaps the most important of these means is ensuring good mental heath benefits and services through a company health insurance plan. One silver lining to the COVID crisis was an increase in the availability of telehealth services, including mental health counseling. Other tools for employers include employee assistance programs, on-site wellness and fitness initiatives, and efforts to educate employees about the symptoms of depression and how best to recognize and address them.

The depression problem is likely to linger. According to one source, 92% of employee benefits leaders said that providing mental health support for their workers became a higher priority for their company in 2021, and 93% said they expect it to stay that way over the next three years. Employers may not have anything to do with causing employees to suffer from depression. Nevertheless, companies may well pay the price for their workers’ distress — and some are doing what they can to address it before the bill comes due.

Group Updates First Aid Kit Standards

The American National Standards Institute (ANSI) and the International Safety Equipment Association (ISEA) have updated their minimum standard for jobsite first aid kits. The new standard takes effect Oct. 15, 2022.

The new standard:

  • Makes it mandatory to have a foil blanket in the kit.
  • Draws a distinction between tourniquets used to control bleeding and the elastic bands used for drawing blood (which are not as effective at preventing blood loss), and offers more detailed guidance on bleeding control kits. 
  • Encourages employers to do a thorough workplace hazard review and augment first aid kits to match those hazards.

Since 2015, first aid kits have been designated Class A or Class B based on the work environment. The new standard applies to both classifications.

The first aid kits and supplies described by the new ANSI standard are considered suitable for a small business. OSHA’s first aid voluntary best practices guide recommends that larger businesses assess how many kits are needed to give adequate coverage through their worksite, and that the kits be stocked with equipment specific to the workplace hazards found there.

OSHA also recommends:

  • For each job site, assessing how long it will take for emergency personnel to respond to an accident or injury.
  • Putting first aid procedures in writing and communicating them to all employees, including those who are not proficient in English.
  • Periodically reviewing and updating first aid and emergency response procedures.
  • Designating a specific employee to keep first aid supplies properly stocked.
  • Offering employees a training program in first aid procedures and responding to health emergencies.
  • Taking language barriers into consideration when deciding which employees receive more advanced training.

The full standard is available for purchase from ANSI.

Simple Safety Tips That Help Maintain OSHA Compliance: Fall Protection, Hazard Communication & Lockout Devices

Inadequate fall protection is the most frequently cited OSHA safety violation and one of the leading causes of injury and death at work. AlertMedia, a maker of emergency communication software to help organizations keep workers safe, provides these tips for fall protection:

  • Guard floor holes with covers, railings and/or toeboards.
  • Use guardrails and toeboards near elevated open-sided platforms, floors and runways, or near dangerous machines or equipment.
  • Keep floors clean and dry.
  • Use safety harnesses, safety nets, stair railings and handrails where appropriate.
  • When using scaffolding, avoid using platforms or planking with less-than-permissible spans, rated load capacity, or thickness. Scaffolds cluttered with debris or materials can create a tripping hazard.

Meanwhile, the OSHA Education Center, which sells OSHA training to construction and general industry workers nationwide, notes that all employees who may be exposed to fall hazards on the job must undergo training to prepare them to recognize and reduce fall hazards. Employers must keep a log of all employees who have completed fall protection training, including their signature and date of training.

Another area frequently cited is hazard communication. The OSHA Education Center says organizations that use or store hazardous chemicals are required to effectively communicate the health and safety risks of those chemicals to workers. All chemicals should be labeled with clear signage, along with instructions on how to respond in an emergency.

Lockout/tagout violations are also frequently cited. The accidental start-up of machinery creates the potential for exposure to electrical hazards, gas, steam and moving parts. Ferguson, a distributor of products including infrastructure, plumbing, HVAC, fire protection and more, says a lockout or tagout device, such as an approved padlock or a combination lock, prevents machine start-up by physically blocking the engagement of the required components for the machine to function. Educate your team about using lockout/tagout devices and ensure the information is communicated to workers who speak other languages.


More Uniformly Infectious, More Treatable, More Genetically Predictable: How Coronavirus is Getting Closer to Flu
Hours after a federal judge struck down the federal mask mandate covering air travel and other public transportation last month, Delta Airlines celebrated the move in a statement saying that Covid-19 “has transitioned to an ordinary seasonal virus.” Click here for full article.

The University of Texas at Austin
COVID-19 Risk Assessment for Public Events – May 2022
We describe a risk assessment framework to support event planning during COVID-19 waves. The method was developed in partnership with public health officials in Austin, Texas. Click here for full article.

Yahoo! News
With COVID Funding Stalled, White House, Prepares for Vaccine Shortage in the Fall
The White House is looking for ways to make additional cuts and reallocate remaining Covid resources as it anticipates a funding shortfall for new vaccines ahead of another winter surge. Click here for full article.

UIC Today
Health Experts Caution Against ‘New Normal’ Strategies for COVID-19
Researchers are warning U.S. leaders and health officials against national strategies for a “new normal” of life with COVID-19. Click here for full article.

Omicron May Be Less Likely To Cause Smell Loss Than Other Covid Variants, Researchers Say
Anecdotal evidence suggests that the coronavirus omicron variant may be less likely than other variants to cause smell loss, a common Covid-19 symptom with potentially serious implications for brain function, according to a paper published May 3 by Otolaryngology–Head and Neck Surgery. Click here for full article.

Amazon Workers Won’t get Paid for COVID Leave Anymore
Amazon is cutting paid time off for front-line U.S. workers who test positive for Covid-19, effective Monday. Click here for full article.

The Washington Post
The Bar for Reimposing Mask Mandates is Getting Higher and Higher
New York City raised its coronavirus alert level earlier this month in response to rising cases, triggering a recommendation — but not a requirement — that people wear masks in public indoor settings. Click here for full article.

The Hill
Americans Less Worried About COVID Despite Rising Cases: Gallup
Less than one-third of Americans in a new poll said they are “somewhat” or “very” worried they will get COVID-19, despite an uptick in cases across the U.S. Click here for full article.

How China’s Lockdowns are Taking a Toll on Global Companies
International brands are revealing the damage to their bottom lines from China’s “zero Covid” policy, where tens of millions of people remain in lockdown and almost every major business has been disrupted. Click here for full article.

Why Won’t More Older Americans Get Their Covid Booster?
Even as top U.S. health officials say it’s time America learns to live with the coronavirus, a chorus of leading researchers say faulty messaging on booster shots has left millions of older people at serious risk. Click here for full article.

Texas News

Texas Tribune
Personal information of 1.8 Million Texans with Department of Insurance Claims was Exposed for Years, Audit Says
The personal information of almost 2 million Texans who filed claims with the Texas Department of Insurance was exposed and publicly available for nearly three years, according to a state audit released last week. Click here for full article.

Insurance Journal
Texas Division of Workers’ Comp Accepting Public Comment on 3 Forms
The Texas Department of Insurance, Division of Workers’ Compensation (DWC) announced it is accepting public comments on three proposed new forms. Click here for full article.

Insurance Business Mag
Texas Mutual Board Approves $330 Million Policyholder Dividend Distribution
Texas Mutual Insurance Company, the state’s leading provider of workers’ compensation insurance, announced today that its board of directors voted unanimously to approve a $330 million dividend distribution in 2022. Click here for full article.

State News

Workers’ Comp ‘Exclusive Remedy’ Rule Barred Barista’s Lawsuit
A coffee barista who was injured at the grocery store where she worked could not bring a negligence action against the store because of the workers’ compensation “exclusive remedy” rule, a California appellate court held. Click here for full article.

Insurance Journal
California Business Owners Arraigned for Workers’ Comp Fraud
Three California business owners were arraigned for insurance fraud this week after an investigation reportedly showed they illegally conspired to lower workers’ compensation premiums. Click here for full article.

Insurance Journal
Report: California Workers’ Comp Written Premium for 2021 Down 2%
California written premium for 2021 was 2% below 2020 and 14% below 2019, a new report shows. Click here for full article.

Business Insurance
Comp Insurers Challenge Physician Dispensing Policy 
A group of Florida workers compensation insurers is challenging the legitimacy of a state policy they claim improperly requires them to authorize physicians and other providers to dispense medications to injured workers. Click here for full article.

Iowa Association of Business and Industry 
Replacement Prosthetics Under Workers’ Compensation 
Earlier in the session, the House passed HF 2411, which requires an employer to provide multiple permanent prosthetic devices to an employee covered under workers’ compensation if it is deemed reasonable medical care. This week, the Iowa Senate passed it on a 43-0 vote. Click here for full article.

CNY Central
Chili’s Shooting Survivor Battles NYS Workers’ Compensation Board for Telehealth Access
The woman who survived the 2018 killings at the Chili’s restaurant in DeWitt says she’s come a long way, thanks to therapy and medications. But she has a major bone to pick with the New York State Workers’ Compensation Board, and she’s not alone. Click here for full article.

Spectrum Local News
Extending Workers Compensation to Lyme Disease Patients Considered
A New York state lawmaker wants to extend coverage for workers’ compensation to workers who contract Lyme disease and other tick-borne illnesses while working outdoors or treating animals. Click here for full article.

Claims Journal
Weight-Loss Surgery Covered by Workers’ Comp, Carolina Appeals Court Finds
Workers’ compensation insurer Erie Insurance Group must pay for weight-loss surgery for an obese woman who was injured at her child-care center, the North Carolina Court of Appeals decided this week. Click here for full article.

Court News Ohio
Cable Installer Owes $341,000 for Misclassifying Workers as Independent Contractors
An underground cable installation company owes about $341,000 in workers compensation premiums because it improperly classified its workers as independent contractors, the Supreme Court of Ohio ruled today. Click here for full article.

Industry News

The Paper
Officials Deadlocked on Pot and Workers’ Comp
The U.S. Department of Justice says the Supreme Court should dismiss two controversial cases involving medical cannabis reimbursement and workers’ compensation. The agency has cited federal legalization efforts as one reason to let the matter go, noting that a number of bills aimed at cannabis law reform are currently making their way through Congress. Click here for full article.

Risk & Insurance
Working from Home: The Workers’ Compensation Exposures Employers Must Review
The pandemic has caused an incredible — and likely permanent — shift in the workforce. Click here for full article.

Preparing for the Unthinkable: Armed Intruders
As America reemerges from the shadows of the pandemic, armed intruders are one threat organizations need to consider and plan for. Click here for full article.

Insurance Business Mag
Win and Losses in the Workers’ Comp Space
The workers’ compensation space has faced a challenging couple of years thanks to the impact of COVID-19 and the move to remote work. Click here for full article.

Insurance Journal
Workers’ Comp: A Shining Star in the P/C Sky, But the Future Is Less Bright as Workforce Changes
Workers’ compensation continues to be the shining star in the property/casualty insurance market. Despite a 9% decline in direct premiums written to $44.3 billion, and a combined ratio in 2020 (91.1%) that was just a few points higher than 2019 (88.5%), the workers’ comp line overall remains profitable, outperforming all other lines in the P/C market. Click here for full article.

Insurance Journal
Claims Frequency Up for 2021, but Workers’ Comp Profitability ‘Unprecedented’
For the first time in more than a decade, workers’ compensation claims frequency, outside of COVID-19 illness claims, increased in the United States last year. Click here for full article.

NCCI Announces 2021 Workers Compensation Performance Metrics
The National Council on Compensation Insurance (NCCI) today released its performance metrics for the US workers compensation system for 2021. Click here for full article.

NU Property Casualty 360
The Time has Come to Move to the ‘Next Normal’ in Workers’ Comp 
Now that the two weeks to slow the spread seems to have come to an end, it is time to cast aside some of the habits acquired during the “new normal” and retain some as we slowly consider a possible return to the “old normal.” Click here for full article.

NU Property Casualty 360
Supreme Court urge to ‘Just Say No’ to Workers’ Comp Marijuana Cases
The U.S. Solicitor General’s Office on May 16, 2022, urged the U.S. Supreme Court not to jump into the debate over whether workers’ compensation should cover medical marijuana costs. Click here for full article.

The Verge
Report: Workers Delivering Amazon’s Packages are Injured at a ‘Shocking Rate’
Some workers delivering packages for Amazon were more than twice as likely to be injured on the job compared to non-Amazon delivery workers, according to a report from the Strategic Organizing Center (SOC) advocacy group (via CNBC). Click here for full article.
WCRI: Indemnity Benefits per Workers’ Compensation Claim in Illinois Increased 11 Percent in 2020, Possibly an Effect of COVID-19
Indemnity benefits per claim increased 11 percent in 2020; two-thirds of this growth was driven by an increase in duration of temporary disability (about a week); a third of the growth was driven by an increase in wages of workers with injuries, according to a recent study published by the Workers Compensation Research Institute (WCRI). Click here for full article.