By Bob Tuman, CCR Consulting
In my almost 40 years as a construction safety consultant, I worked with hundreds of contractors and performed several thousand workers’ compensation Loss Control Surveys.
In completing the insurers’ Survey Report, I compared the newly insured’s ACORD and Supplemental Applications’ answers with my Survey findings, identifying and citing discrepancies. Surprisingly, I found numerous disconcerting discrepancies which, in some cases, resulted in cancellation for “material misrepresentation”. For example, numerous masonry and framing contractors with unfavorable loss experience and which did not have active scaffold safety and fall protection programs answered “Yes” to owning, building and using pipe scaffolding and to having trained and certified scaffold “Qualified and Competent Persons”- to build and inspect pipe scaffolding.
Given the number of fatal scaffold-related accidents nationwide (see OSHA’s weekly fatality listings in OSHA.gov), during jobsite visits I made a point of thoroughly inspecting pipe scaffolding. I observed missing guardrail, missing toe board/kickboard (falling object protection), scaffold frames not pinned to each other or secured to structures, and numerous fall hazards. These contractors also reported that untrained employees erected and dismantled scaffolding and could not provide scaffold safety inspection reports. I left these jobsite visits scratching my head. Why did the underwriters agree to insure these contractors?
History does tend to repeat itself. To illustrate worst case, a newly-insured façade restoration contractor with unfavorable loss experience, including falls off of pipe scaffolding, submitted a death claim in the second month of the new policy year when a 45 year-old employee fell off the unguarded end of pipe scaffolding and died the next day. The large loss investigation found no scaffold safety program, no documented scaffold inspections, and no scaffold-trained employees. Review of the Supplemental Application and accompanying notes revealed that the contractor stated that it owns and erects pipe scaffolding and has an active scaffold safety program in place, including scaffold Competent Person and employee scaffold safety awareness training.
I rated these new insureds BELOW AVERAGE, often issuing “Critical” recommendations, a recommendation which requires corrective action(s) 10 days from issuance. This increased scrutiny did not sit well with the new insured and its agent, and both often resisted the increased focus. This forced underwriters to threaten cancellation for non-compliance. Bad feelings all around.
So…how can you prevent this from happening and increase your chances of being rewarded for your efforts to keep employees safe and healthy? The answer: Provide insurers with documentation evidencing your efforts to control your injury and illness risks and exposures.
Let’s go through a standard “Workers’ Compensation Supplemental Application” and review documentation you can and should provide during the application process. Too busy? Ask your agent for help. She or he is an experienced and knowledgeable professional who has a wide array of resources.
OPERATIONS AND BENEFITS
Driver safety:
Provide: 1. Signed and dated driver safety training records, training materials, driver safety guidelines, and drivers’ acknowledgements that they understand and will comply with driver safety guidelines. 2. Proof that you obtain and review new hires and current employees’ Department of Motor Vehicles’ (“DMV”) driving records and at least annually. 3. Proof of enrollment in a program similar to the California Employer Pull Notice Program. With drivers’ advance written consent, this program authorizes the DMV to notify you as soon as possible after your drivers’ violation.
Early Return-to-Work:
Provide: Your Early Return to Work (“ERTW”) program, including information on injured employees who returned to modified duty and, if it was helpful, a modified work schedule. Just go through your “loss run” and describe what you did after each accident, including corrective actions.
Do you have a passive or proactive Early Return to Work program? A passive ERTW program generally relies on the temporarily-disabled employee’s medical provider(s) to release her or him to modified duty. A proactive ERTW program is one where management is in regular contact with the temporarily-disabled employee, her or his doctor(s), and the adjuster, and where management continually assures and reassures the injured employee that it wishes to get her or him back to modified work ASAP. Further, proactive loss management provides doctors, their injured employees, and adjusters with descriptions of proposed modified duty jobs and tasks, with caveats that management will continually adapt the proposed modified duty jobs and tasks to accommodate injured workers’ capabilities and restrictions.
Why is a proactive Early Return to Work program preferable to a passive program? Proactive efforts demonstrate employers’ caring, ability, and willingness to return injured employees to modified work and, if needed, a modified work schedule. Conversely, as adjusters and underwriters understand, passively waiting for medical providers to release injured workers to modified work or their regular jobs can and does take time, causing claims to drag on, requiring additional costs and increases in reserves. Loss prevention and LOSS MANAGEMENT go hand in hand. Some accidents may not be preventable (i.e. the roofing contractor’s employee who was struck by lightning twice- he lived, but sustained long-term neurological problems), but employers with proactive Early Return to Work programs can exert control over what is done to return injured workers to modified work.
I have not done a statistically-significant study of employers’ approaches to Early Return to Work, but I can state with certainty that clients who took the proactive approach enjoyed more favorable loss experience than those who waited for doctors to release employees to modified or full duty. Further, engaging the injured worker early and often (“How are you feeling? We have a job for you whenever you’re ready to return to light/modified work. What can we do for you? Do you and your family need anything? Did you get your check? We’d like to visit. When will you be up for visitors?”) and regularly contacting medical providers (“Can you take a look at the light duty/modified duty job we’ve created? If you don’t think your patient is physically capable of doing this work, can you provide our employee’s capabilities and restrictions so that we can modify the job- and arrange a modified work schedule- to make it more suitable? We are committed to getting injured employees back to work in any capacity.”) cemented the relationship with anxious injured workers.
HIRING PRACTICES-EMPLOYEE SELECTION-CLAIMS
Hiring and applicant screening practices: Risk management starts with applicant screening. Describe your recruiting, hiring and applicant screening practices. Does more than one manager interview applicants? Recruit from Craigslist? Labor services? Temporary help agencies? Word of mouth referrals from current employees? Though I have not conducted statistically significant hiring and applicant screening longitudinal research, I can state with certainty that those contractors which hire applicants referred by trusted employees have more favorable loss experience, solid productivity, and employee retention than those employers who hire persons unknown to them.
Is job-specific training provided? Provide signed and dated copies of job and injury-and-illness exposure-specific new hire and employee training records. If you were a workers’ compensation underwriter, would you insure a roofing contractor (and one with large fall-related claims) which does not have a fall protection program which includes new hire and employee fall protection training and mandatory fall protection?
Subcontractors used? If yes, are certificates of insurance obtained and kept on file? “YES” doesn’t tell you much about your subcontractor certificate of insurance diary system. Describe your subcontractor certificate of insurance diary system. Do you enter, and where do you enter, subcontractors’ expiration dates? Paper spreadsheet? Manual system which tasks a designated employee to monitor? Database system which alerts you with a “pop up” in advance of expiration? How far in advance of expiration? Who is in charge of monitoring subcontractors’ certificates of insurance? How often does that employee look at expiration dates? If you have a manual system, when does the designated monitor contact subcontractors to obtain renewal certificates?
All too often, contractors let their subcontractors start work before verifying that they have workers’ compensation insurance. Many contractors elect to withhold payment for work already performed until they receive a certificate of insurance, with them named as Additional Insured.
I know what you’re thinking- you’ve used the same subs for years, and you trust them. However, think about this: there are many reasons, most of them innocent, why contractors’ unintentionally let their insurance lapse and why contractors fail to request subcontractors’ certificates of insurance.
This can have costly consequences.
True story: An excavation and trenching contractor which had been coached by its agent on the importance of obtaining subcontractors’ certificates of insurance, forgot to obtain a certificate of insurance before it subcontracted excavation and trenching work to another known and trusted contractor. The subcontractor’s operator flipped his excavator, fell out, and the excavator landed on his legs, resulting in compound fractures, multiple surgeries, and the operator’s permanent and total disability. The workers’ compensation free care pool subrogated the six figure claim to the subcontracting excavating contractor, its insurer cancelled its workers’ compensation insurance, and the agent was forced to place this contractor in the assigned risk pool. The contractor’s premium more than tripled in each of the following 3 years.
SAFETY PROGRAM AND ORGANIZATION
Are owners active in daily operations?
Provide: The number of projects you work on during an average day, specifying how many of these are active, how often you visit each project, and specifically what you do when visiting jobsites. Walk the jobsite? Safety inspection- do you document? Corrective actions? Issue safety violation notices? Meet with the Super and lead Foreman to discuss project particulars? Participate in coordination meetings?
Prospective insurers want assurance that owners are hands-on managers or task jobsite managers to do whatever they can to protect employees, that they visit jobsites often, and that they devote some time during each jobsite visit to employee safety. Smaller contractors have designated Safety Officers. Owners should detail exactly what these Safety Officers do. Insurers and their Loss Control Consultants frown on contractors whose Safety Officers are in name only.
Active injury and illness prevention program? Sorry for the cliché, but ACTIONS SPEAK LOUDER THAN WORDS. I have seen a great many safety manuals covered in dust.
Provide: A copy of your safety rules. These should ideally be exposure-specific- “Fall protection is mandatory at all times when on roofs with no perimeter fall protection, signed and dated employee acknowledgements that they understand and will comply with your safety rules, and signed and dated copies of exposure-specific safety meetings (ladder safety, scaffold safety, trench safety, electrical safety, etc), safety training and safety inspections. If you were a workers’ compensation underwriter, would you insure a framing or roofing contractor which does not have a documented fall protection program with new hire and current employee fall protection training and mandatory fall protection?
Has Cal/OSHA or OSHA visited or cited your business in the last year?
Provide: Copies of the OSHA citations for the past five years. Further, describe OSHA inspections which resulted in NO citations, and why there were no citations or fines. Describe the corrective actions you took after the citation(s) and what you continue to do to ensure a safe workplace. I have noticed that Cal OSHA Compliance Officers visit work sites during summers to check on employers’ adherence to their Heat Illness Prevention Program. Several insureds which I surveyed received citations for inadequate execution of their Heat Illness Prevention Program
Preempt discovery of citations, as every employers’ OSHA citation history is public and can easily be accessed by going to OSHA.gov, typing “Establishment Search” in the upper right hand search box, and entering the contractor’s name and other information in the designated fields.
Do you have a safety director or risk manager?
Provide: The name of the full-time or part-time Safety Director/Risk Manager/Safety Officer and what she or he does. Revises safety documents? Performs jobsite safety inspections with timely corrective action? Conducts jobsite safety meetings? Safety training? Provide her or his signed and dated inspections, safety meetings, safety training records.
How much time (10%, 20%, 50% of an average day, week, month?) does this person devote to safety? What are her or his qualifications? All too often, and especially with small contractors, the designated safety director or risk manager is neither qualified (i.e. no formal safety training such as an OSHA 10 or 30 Hour Construction Safety course), nor does she or he actually do anything. If you were a workers’ compensation underwriter, would you insure a contractor whose safety director or risk manager is in name only?
Do employees receive safety training/orientation? If yes, how often? If yes, is the training formal/documented or informal?
Provide: Exposure-specific signed and dated safety training/safety orientation records.
For example, if you are a site contractor or excavate and trench, you are undoubtedly aware of incidents where workers were buried in excavation and trench cave-ins. You also may be aware of OSHA’s excavation and trenching National Emphasis Program (warrantless inspection of construction projects involving excavation and trenching) promulgated after years of fatal excavation and trench cave-ins. Given this awareness, if you were a workers’ compensation insurance underwriter, would you insure an excavation and trenching contractor which does not have an excavation and trenching safety program and practices, and which has NOT conducted excavation and trenching Competent Person training, including when and how to inspect excavations and trenches to minimize cave-in potential?
Any lifting exposures? If yes, less than 25 lbs., 25 to 40 lbs., 40+ lbs?
Provide: Descriptions of the heaviest objects, material, and/or equipment a single employee lifts each workday, how many times that employee lifts that object, material, and/or equipment, and what you are doing to minimize costly back and other bodily injury.
Let’s play this out. You are a drywall and stud contractor. Individual employees lift and carry one +/- 44 lb. sheet of drywall 10 times per day, 5 days a week, 40 weeks a year. Let’s do the math: 44 X 10 X 5 X 40. That’s 88,000 lbs. every year, year-in and year-out.
You’ve got to assure the insurer that you are doing as much as possible, including equipment-assisted and multiple-person lifting and holding supervisors, superintendents and alike accountable for enforcing safe lifting and material/equipment handling practices.
Forklift training provided? If yes, annual certification?
Provide: Signed and dated copies of forklift operators’ certificates of completion of “Powered Industrial Truck” training and retraining.
A general contractor’s rough terrain forklift operator accidentally backed up over the carpenter Foreman’s legs, resulting in compound fractures, multiple surgeries, and permanent and total disability. The investigation found that the operator’s training card had expired two years before and that the operator had been observed driving too fast and recklessly, both grounds for disciplinary action and rough terrain forklift retraining/recertification.
Written lock out/tag out/block out procedures in place?
Provide: Signed and dated copies of new hire and current employee “Control of Hazardous Energy/Lock out/Tag Out/Block Out” training records. This should include documented retraining of employees annually and in the event an employee failed to adhere to the program’s procedure and requirements.
Note: When underwriting electrical contractors or contractors which perform electrical work, ask for the same as above, and also ask for signed and dated copy(s) of National Fire Protection Association (“NFPA”) 70E training record(s). Given the number of electrocutions and electric arc flash and arc blast-related burns and fatalities, NFPA 70E training and arc flash/arc blast protection must be a critical component of every electrical safety program.
Respiratory protection program in place?
Provide: 1. A signed, dated and employee-acknowledged copy of your Respiratory Protection Program for respirator wearers. 2. Signed and dated copies, without employee identifying information, of respirator wearers’ respirator medical clearance letters, respirator fit tests, proof of respiratory training- i.e. how to perform a respirator seal test, how to select the correct cartridge filter to minimize exposure to, for example, chemical fumes, dusts, lead, asbestos, and how to care for and maintain your respirator.
What is the maximum height at which you will work? What is used? Ladder? Scaffold? Scissor lifts?
Provide (ladder safety): Signed and dated and employee-acknowledged ladder safety program, ladder safety meetings, ladder safety training records and ladder safety inspections.
Provide (scaffold safety): Signed and dated copies of scaffold Qualified and Competent Person(s) completion of training certificates, Competent Persons’ signed and dated scaffold inspections.
Provide (scissor lift safety): Signed and dated copies of operators’ completion of scissor lift training certificates.
Personal protective equipment provided? If yes, strict enforcement of utilization?
Provide: Your list of required Personal Protective Equipment (PPE) and how you enforce use. This could be a combination of incentives and penalties, or just “You are required to wear a hardhat, safety glasses, work boots, a Class II high visibility vest, protective gloves, and face covering, period.” Supervisors tire of having to remind employees to wear PPE, so many contractors mandate the aforementioned PPE, no exceptions. This policy is much easier to manage.
CONTRACTORS
Any use of cranes, booms or similar heavy construction equipment?
Provide (cranes): Signed and dated copies of recent (within the last 12 months) crane inspections, crane operator’s license, and the crane company’s “Pick Plan” for your project. The Pick Plan details, among other things, where and how the crane contractor will site the crane, how they will set up a Controlled Access Zone to protect both their and other contractors’ workers, and how they will keep unauthorized persons away from the crane operations.
The international General Contractor, an employer which had received many prestigious safety awards, was awarded a multi-billion dollar contract to transform a major US city’s aging industrial and warehouse area into a new residential, commercial and retail mecca. They demolished all but one industrial building, using it to house offices, meeting rooms, and employee break rooms. They erected a tower crane, and initiated a plan to protect employees working under crane operations, including vacating and locking the office building before commencement of crane operations. Unfortunately, the General Contractor relaxed its vigilance, stopped vacating the building and locking its doors. Instead of verifying that all workers were out of the building, they just used the PA system to ask workers to exit the building. And, instead of locking the doors, they intermittently strung caution tape in front of entry ways.
One day the crane was moving multiple steel beams into place when they came loose, fell and crashed through the roof, hitting the Site Safety Officer and a Project Manager, and killing both. The Site Safety Officer’s parents both worked on this large jobsite, and the Superintendent was tasked to tell them that their son had been killed.
Provide (boom cranes/aerial lifts): Signed and dated copies of operators’ completion of boom crane/aerial lift training certificates and statement that the contractor requires employees to wear safety harnesses while working in aerial lift work platforms.
Any work below grade? Maximum depth in feet? % of total work?
Provide: 1. Minimum, average and maximum depth to which you excavate and trench, and specifically how you protect workers against cave-in. Note that electricians, plumbers, underground utility contractors, and other trades also work in excavations and trenches, and have to be protected against cave-in and spoils piles (excavated dirt and stone placed near excavations and trenches) falling into the excavation or trench, or collapsing trench walls. 2. The depth at which you require cave-in protection. 3. Signed and dated copies of completion of excavation/trench Competent Person training certificates, employee excavation and trench safety awareness training records/safety meetings, and recent excavation/trench inspections.
Note that many excavation and trenching contractors hang their hats on cave-in protection when the depth is 5’ or greater. Not so, cave-in protection is required at shallower levels in other circumstances when the soil is unstable.
Note OSHA’s excavation/trench National Emphasis Program. Under Local, Regional and National Emphasis Programs, OSHA Compliance Officers do not need warrants or probable cause to inspect projects involving excavation and trenching.
Any confined spaces exposure?
Provide: Note: It has been my experience that unless contractors regularly work in manholes, duct banks, electrical vaults, tunnels, large vessels, culverts, and/or other spaces and structures with limited means of entry and exit, known or suspected hazards, and spaces not meant to live in, that they don’t know what constitutes a permit-required or non-permit-required Confined Space.
So, how should you address “Any confined spaces exposure?”
Answer: Employees work in …manholes, electrical duct banks, electrical vaults, vessels, tunnels, deep excavations and trenches, culverts, and/or other spaces which only have one entrance and exit, which contain or may contain hazards (i.e. active manhole with residual methane fumes), and which are not meant for continuous occupation (? 5%, 10%, or other percentage) of the time.
Answer: Attached please find a copy of our Confined Space Entry safety program with Confined Space Entry procedure(s), copies of employees’ completion of Confined Space Entry training certificates, and recently signed, dated and completed Confined Space Entry Permits. We own and use a regularly- calibrated and recalibrated gas/oxygen meter, a tripod, safety harnesses, 2-way radios, blowers and vacuums (provide photos).
Many years ago, the occupational health clinic I managed received a call from a large manufacturing client that a 23 year old employee had died. The employee was found at the bottom of a silo-size vessel used to sterilize plastic products. This manufacturer sterilized plastics by injecting a special heavier-than-air chemical into a closed and sealed large and deep vessel. This chemical displaces oxygen, and the manufacturer had failed to purge it all before authorizing this employee to descend into the vessel to clean it. The investigation found that the otherwise healthy employee had descended into a 10’ deep oxygen-free atmosphere, had lost consciousness, and had died within seconds. Mid six-figure claim, and OSHA cited and fined (six figure fine) the employer for its lack of a Confined Space Program and Confined Space Entry training.
Is it realistic to ask you to provide ALL of the aforementioned information and documentation? Probably not.
However, if you are an excavator, electrical contractor, framer, roofer, stucco and exterior building restorers, professional scaffold erectors and dismantlers OR any other contractor with inherently high risk of injury and/or illness, providing injury and illness exposure-specific information and documentation will only help to tip the scale in your favor.
In closing, I would like to thank my contractor clients who willingly relented, despite repeatedly asking “Why do we have to…require safety harnesses, protect even shallow trenches against cave-in, wear safety glasses which fog up, document scaffold safety inspections, etc., knowing that these recommendations were made in their best interest.
And to all the contractors who taught me much more about protecting employees than I ever taught them, I am eternally grateful.
About the Author:
Bob Tuman is president of CCR Safety Consulting in California, providing safety consultation to construction contractors and performing Workers’ Compensation and General Liability Loss Control Surveys for property and casualty insurers. For further information or to contact CCR directly, please contact: 805-545-5976 or email bobtuman@gmail.com
