By Holt Andron, CSP, CHST, CRIS, AGC Safety Management Consultant
It is common knowledge in the construction industry that low injury rates make you more competitive when bidding jobs. Contractor pre-qualification criteria has become increasingly stringent and automated through the use of platforms such as HighWire and ISNetworld, further replacing the days of when longstanding interpersonal relationships held sway in business decisions.
Considering the changing landscape, companies who take advantage of opportunities to minimize injury rate statistics while still supporting their employees with excellent medical care find themselves in an advantageous position when it’s time to competitively bid. In this article, we explore how to strategically and ethically manage workplace injuries.
It All Starts With the OSHA 300 Log and Recordability
Recording workplace injuries on your company’s OSHA 300 log is required by rule for the majority of AGC members. You, or someone within your organization, are likely already familiar with the criteria for what constitutes a “recordable” injury. Essentially, anything not listed on the first aid table (Table 6 as referenced in OAR 437-001-0700(8)(d)(B)) is recordable.
Oregon OSHA specifies “first aid” as outlined in Table 6 is not recordable on the 300 log, nor is “medical diagnosis” or testing. In contrast, “medical treatment,” which constitutes any treatment that is not specifically outlined in Table 6, is recordable on the 300 log.
Here’s where we find our opportunity to be strategic- note the following:
- Form 801 is required to be completed for each recordable injury or illness entered on the OSHA 300 log.[1]
- If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log.[2]
- First aid treatments listed in Table 6 are considered first aid regardless of the professional status of the person providing the treatment.[3]
DCBS Form 801 is the form used to initiate a workers’ compensation claim; as highlighted above, it is required to be completed for each recordable injury on the 300 log. Herein lies the dual advantage of possibly treating injuries in a way that excludes them from being recorded on the 300 log. Your 300 log rates (DART, TRIR aka RIR aka TRC aka TRCR) are not affected by first aid cases, and neither is your Experience Modification Rating (EMR aka Mod rate aka Experience rate) or Incurred Loss Ratio. This is because the injury never became a workers’ compensation claim (no 801 was filed) and was never recorded on the 300 log.
The takeaway is clear: savvy employers ensure, when possible, their injuries are limited to first aid treatment only to the greatest extent possible.
This can be done in a compliant manner and, most importantly, in an ethical way that does not sacrifice the standard of care for the injured employee. To emphasize—this does not mean reducing care to the employee. How does this work? The answer is leveraging on-site medical services and occupational health care clinics.
What is On-Site Medical Care?
On-site medical care providers deliver immediate injury care at job sites, offering first aid, medical treatment, and injury assessments. For first aid treatment, the service is an out-of-pocket expense that can be paid outside the workers’ compensation insurance system altogether (because it’s not recordable).
On-site medical providers are typically trained in strategies to manage injuries in a way that helps prevent them from becoming recordable on the OSHA 300 log, while still ensuring proper care and compliance with regulations. Examples include providers treating wounds with butterfly bandages or steri-strips (first aid) instead of stitches (medical treatment), providing over-the-counter medication (first aid) in lieu of prescription medication or higher-dose versions of over-the-counter medication (medical treatment) for pain, and using non-rigid means of support for injuries (first aid) in lieu of rigid splints (medical treatment).
This level of precise treatment is generally not offered by emergency rooms or urgent care clinics. Some (or maybe most) medical providers who are unfamiliar with recordability issues and return-to-work policies may “overtreat” injuries and potentially assign unrealistic recovery timelines, unaware that modified or light-duty jobs are available.
An added benefit to employees treated on-site is they can often return to work the same day (avoiding lost productivity). This is generally unlikely to happen if an emergency room or urgent care clinic provides treatment. Another intangible benefit of on-site medical care is the reassurance an injured worker receives when a qualified, independent medical practitioner quickly administers treatment. The worry or uncertainty associated with a workplace injury can be jarring; receiving professional medical care immediately after an injury helps alleviate the shock and anxiety of the event as much as it does the physical injury. This gives peace of mind to the worker, and their family, who may be frightened and defensive upon hearing their loved one was hurt at work.
What are Occupational Health Care Clinics?
A similar but different option for treatment is a specialized occupational health clinic. These clinics offer specialized medical services tailored to the health, safety, and productivity of workers. Most of these clinics have an understanding of OSHA’s distinction between medical treatment and first aid, as well as the resulting impact of treating injuries in a manner that makes them recordable on the 300 log.
Don’t Employees Have the Right to Choose Their Own Medical Provider?
The simple answer: yes. Employees are allowed to choose their own medical provider per ORS 656.245(2)(a). That said, Oregon OSHA requires employers to provide adequate emergency response and first aid measures in both construction and general industry (for construction, see 29 CFR 1926.23 and 1926.50).
The best way to reconcile the freedom of choice employees have is to clearly, effectively, and repeatedly communicate your standard protocol for initial injury treatment. Should an injured employee decline to follow your protocol (which is typically rare, even for non-life-threatening events), they are free to choose treatment from their preferred provider. If you encounter this situation, your next steps should be to regularly overcommunicate with all parties involved (healthcare provider, insurance adjuster, and employee) about the injury and document all interactions thoroughly.
What if the Injury is the Employees’ Fault?
The workers’ compensation system is designed as a no-fault framework that provides benefits to employees injured on the job, regardless of how the injury occurred. For example, an employee who failed to use a required safeguard or piece of personal protective equipment or follow a required procedure and was subsequently injured as a result would still be entitled to care through the workers’ compensation system. Fault is typically irrelevant unless the injury was intentional or involved extreme misconduct (e.g., under the influence, impairment, or deliberate self-harm)).
When using on-site medical or occupational healthcare clinics to treat first aid cases, the “exclusive remedy” shield from litigation is removed, as the injury does not enter the workers’ compensation system due to its minor nature. To be sure, first aid cases that may eventually progress to needing medical treatment are then covered by the exclusive remedy of workers’ compensation insurance by filling out an 801 form and filing a claim.
In the event a work/safety rule was violated resulting in an employee injury, and the treatment did not result in a workers’ compensation claim, employers will need to carefully evaluate their policies and confer with legal counsel to determine next steps.
Considerations and Risks
- Incomplete Coverage: Paying out of pocket for employee work-related injuries for anything beyond first aid is illegal. However, when using on-site medical service providers or occupational health care clinics, the employer can pay the first aid treatment costs out of pocket until the injury is determined to be recordable.
The takeaway is to use these services for the treatment of injuries that can be reasonably considered non-disabling or relatively minor, but that may still be recordable. Emergency medical care should always be provided in emergency situations.
- Employee Rights: It’s essential to verify and audit the care that the on-site medical practitioner is providing. Employees may perceive out-of-pocket care (on-site medical first aid) as less protective than a traditional doctor’s visit. If on-site care is inadequate or if there are delays in necessary treatment, employees may sue for damages, thereby increasing the company’s legal exposure. Communication is key after an injury, and you want to make sure the employee’s injury is being addressed appropriately from the start.
- Return on Investment: A reduction in workers’ compensation claims can lower premiums over time by decreasing your company’s Experience Modification Rating (EMR). If you are considering having an on-site medical provider service your job sites, you would be wise to evaluate the costs of on-site care against potential premium reductions. Generally, the benefits of both EMR reductions and limiting 300 log entries (which in turn reduce your DART and TRIR) make the investment sensible, and employees appreciate the timely care.
Best Practices
- Train all site management, including foremen, crew leads, project managers, and superintendents, in First Aid / CPR.
All field personnel with any management authority should be OSHA 30-hour certified in addition to being first aid certified. This ensures the first person to take action in the aftermath of an injury incident will have knowledge of the most appropriate steps to take, both from a treatment standpoint and a recordkeeping standpoint.
- Develop relationships (and consider contracting) with on-site medical providers and occupational healthcare clinics. Invite them to visit your facility, meet your teams, and talk to your people about what they can offer. Understand what their treatment options are, cost, proximity to your sites, terms of service, and what liability exposures they do or do not inherit by providing care to your employees.
- Ensure that everyone is aware of the protocol in case of an injury. Designate and train personnel to perform an initial evaluation of the situation, determine who will call on-site medical assistance, and identify the location of the nearest occupational healthcare clinic, among other tasks.
- Instruct employees to call the on-site medical provider or visit the occupational health care clinic after work if the issue persists. Keep them in contact with the initial provider to ensure continuity of care and a single understanding of the course of treatment as much as practicable.
- Have a member of management (such as a foreman or supervisor) accompany the injured worker to the clinic or meet them there. Ensure the employee understands that their recovery is your top priority.
[1] OAR 437-001-0700(14)(a)(B)
[2] OAR 437-001-0700(8)(d)
[3] OAR 437-001-0700(8)(d)(B)