Archive for February, 2004

IBM cancer lawsuit – exclusive remedy, workplace illnesses, and technology industry exposures

Sunday, February 29th, 2004

Last week a jury found in favor of IBM by denying damages in a suit filed by two retired workers. The workers alleged that exposure to chemicals and toxins at an IBM plant led to cancer. This case points to several issues that should be of interest to employers and to those of us who work in the field of workers compensation.

First, there is the tort issue. Normally, any compensability for work-related injuries or illnesses would be determined by the state workers compensation system. In that these illnesses arose out of and in the course of employment, why wouldn’t they fall under the prevailing jurisdiction’s exclusive remedy clause of workers compensation?

The answer to this question lies in the fact that almost every state has exceptions to the exclusive remedy doctrine that allow for workers to file tort actions. One common exception is willful intent on the part of the employer. That was essentially the basis of this particular lawsuit: the employees were trying to establish that IBM knew the potential hazard these chemicals represented, that IBM willfully disregarded that danger, and – very important to the California exception – that IBM neglected to inform the employees about that danger. Courts typically impose fairly high standards of proof in cases involving willful intent.

A second issue this case highlights is the difficulty in proving the work-relatedness of an illness. Injuries are generally easier to determine – they often entail observable events, such as a fall, a cut, or a burn. Illnesses may take years to develop. It may also be difficult to separate work-related factors that led to an illness from non-work factors. In the case of chemical exposures, a direct medical link between chemical exposure levels and an illness can be years in determination; even then, chemical agents may be in widespread use, making it difficult to isolate whether the workplace is the proximate cause of the illness.

The judgment in this case may well be a pyrrhic victory for IBM and for the chip industry. A series of 200 related suits from former workers about cancer and chemical poisening are still in the docket, as are about 40 suits involving birth defects in children of workers. The first birth defect suit against IBM will begin in New York next week.
We’ve been talking laws here, but at the heart of the matter is worker safety. The toxins involved in the chip making industry have been coming under scrutiny for several years now, and although there have been some industry efforts at self-policing and enhancing safety, hazards still exist that risk managers, health & safety practitioners, and the industry itself must still address. The fact that IBM has “won” this round does nothing to lift the moral mandate that every employer has to provide a safe and healthful workplace. And if one of the remaining suits finds success in another jurisdiction, the financial imperative may become more pressing as well.

Confined Space reports more on the safety hazards involved in this case, and also reports extensively on a proposed European initiative called REACH (Registration, Evaluation and Authorization of Chemicals) that increases the chemical industry’s responsibility for generating knowledge on chemicals, evaluating risk, maintaining safety standards, and substituting safer chemicals when possible.

More information:
Labor perspective from IBM Alliance
Tech industry reportage at Information Week
Toxic technology: Critics say chemicals used in making chips cause serious illnesses
Dirty secrets of the chipmaking industry
CCOHS: Health effects of trichloroethylene

States ask drug firms to report gifts to individual physicians

Sunday, February 29th, 2004

In an attempt to control rising drug costs, four states – Maine, Nevada, New Mexico, Vermont – have legislation requiring pharmaceutical representatives to report on marketing expenditures to physicians. Ten other states are currently considering such legislation, while six other states have rejected similar legislation.

“The first step state lawmakers are taking is requiring companies to report how much sales representatives are spending and what they’re spending it on. Sponsors of these bills acknowledge that they may not immediately lower costs, but new laws could cause a budget shift with less spent on marketing and more spent on samples, medical education support and research and development.”

While both the AMA and the pharmaceutical industry have had ethical guidelines in place since 1990, some don’t think that these guidelines go far enough when considering the expenditures involved. In 2003, drug companies spent $21 billion on marketing versus $32 billion on research and development.

The Center for Policy Alternatives reports that:

“Drug manufacturers spent more than $16 billion on direct marketing to doctors in the United States during 2001. That amounts to more than $19,000 per physician per year. This money is largely spent on visits to doctors by drug manufacturer sales representatives, called “detailers.” The job of a detailer is to promote the latest, most expensive brand name drugs.”

“Drug companies increased spending on marketing to doctors by 74 percent between 1997 and 2001, according to the U.S. General Accounting Office. The drug industry employed 87,892 detailers in 2001, an increase of 110 percent from the 41,855 employed in 1996. During that period, the drug industry sales force grew from one detailer for every 19 doctors to one detailer for every nine physicians in America.”

More on state efforts to control prescription drug costs and the impact of prescription drug costs on workers compensation.

NIOSH Worker Notification Program

Wednesday, February 25th, 2004

The National Institute for Occupational Safety and Health is a federal agency charged with conducting research to prevent illnesses and injuries in the workplace. They’ve added a worker notification program on their site that provides medical information, resources, and research for a variety of workplace exposures. For example, steelworkers can learn about exposure to acid mist; dry cleaners could learn about organic solvents; industrial sand workers about silica, and so forth. Information is searchable by industry group or by type of exposure.
Thanks to Jordan at Confined Space for the pointer to this resource, which he sees as “a fairly major step in translating valuable scientific material into a form that workers can actually use.”

Where are all the corporate weblogs?

Tuesday, February 24th, 2004

In a recent article entitled Business Blogging, Jack Schofield of The Guardian ponders the reasons why more companies don’t have weblogs. He points to ” … a few pioneering American examples, such as Walt Disney and the state of Utah, but otherwise blogging seems to be a personal rather than a corporate stratagem.”
One potential reason that he suggests:

“Businesses and governments just don’t get it, because they don’t see the difference between the medium and the message. It’s like someone looking at a printing press and saying: ‘Well, Mr Gutenberg, that’s very interesting, but there is a finite market for Bibles.'”

I’ve wondered why blogging has been slow to catch on in the business world, too. It seems like a simple way to communicate with your constituents, internal and external. After all, if you are an expert on the service or product that you sell, and if you are presumably following industry news anyway, doesn’t it then make sense that you would want a platform for sharing that expertise with clients, vendors, and your industry at large?
Maybe it’s caution on the part of corporate lawyers. Maybe it’s not being able to think outside of the traditional advertising box. Maybe some large companies are trained to think of *solutions* as always having a big price tag. Or maybe it just takes a while for things to filter into the boardroom. Even tech companies don’t seem to be blogging in any large numbers – journalists, attorneys, physicians, consultants, and marketers seem to be in the vanguard on the business blogging front.
Be sure to check out some of the business blogging pioneers under Business Weblogs in our sidebar. The Guardian article also has links to several business blogs and resources on blogging.

Hazardous duty: Earl Dotter photographs America working

Monday, February 23rd, 2004

You must visit the extraordinary site of photojournalist Earl Dotter. He describes his work better than I ever could:

For 30 years, the camera has enabled me to do meaningful work. Starting in the Appalachian coal fields, and continuing through the years over a broad spectrum of industries and regions of the country, I have observed and documented the working lives of Americans. Standing behind the lens, I have celebrated the accomplishments, the pride and the skill of workers and community activists … When I walk through a mine, mill, or on board a fishing vessel, I find myself drawn to those individuals who emanate a sense of personal worth and belonging to the human family. When I experience tragedy in the workplace – death, disability, and exploitation – I use the camera to explore not only the person or event, but my own reaction to it. If I am successful, then the viewer will be better able to stand before the photograph and feel the intensity of the moment as I myself do.

I came upon the site because I used to live in Portland, Maine, and someone there was telling me about an exhibit they had seen last year, The Price of Fish – Our Nation’s Most Perilous Job Takes Life and Limb in New England. Interestingly, the exhibit was sponsored by Maine Employers’ Mutual Insurance Company (MEMIC) as part of their Safety Academy’s outreach, and if you take the time to view the photos you will see how appropriate the exhibit was for this purpose.

His book The Quiet Sickness first chronicled South Carolina textile workers with brown lung disease (or byssinosis) as a consequence of exposure to cotton dust while on the job at the local mill. Photos from several other chapters are available also, and they are very powerful and poignant images, often quite raw – I found the healthcare worker photos particularly troubling, perhaps because I have family full of nurses. Also, the agriculture and food production photos are disturbing – I hadn’t thought of quite how many risks are taken to keep my refrigerator full.

It’s easy for those of us who work in the industry to be caught up in the claims and the dollars every day and forget what is at the heart of this business. Earl Dotter brings that home.

Toxic mold and workers compensation: an issue for your watch list

Sunday, February 22nd, 2004

The Sebastian, FL police station recently dealt with 21 toxic mold claims from employees who allegedly became ill from mold at the station. Fifteen cases were dismissed or settled for small amounts; another six involved lump sum settlements.

Toxic mold is an issue to watch. It’s a potentially explosive issue, and some in the industry liken it to asbestos or sick building syndrome because any exposure could involve large numbers of employees. And it is an issue that is attracting legal attention. The Ballard family of TX had a judgment of $32 million – later reduced to $4 million – for damages in a suit about illnesses from mold exposure in their home. Many think that with judgments of that magnitude, toxic mold claims will inevitably migrate to the occupational arena. And according to Mold Spreads, an article in CFO Magazine last September, this is already occurring:

“Some corporate risk managers are closely watching the federal suits filed against IBM Corp. in North Carolina, where several employees allege they experienced mold-related illnesses following an April 2000 flooding incident at the Research Triangle Park campus. Also under scrutiny is a class-action suit by two United Airlines employees alleging that mold constitutes a major health hazard in Concourse B at Denver International Airport.”

And workers comp claims play a part in these suits:

“In addition to several workers’-comp complaints relating to IBM’s Building Nos. 61 and 205 at Research Triangle Park, the company is confronting federal-court claims from senior financial analyst Julie Ord, now on disability leave, and program manager Linda Allen. The two claim that in the wake of flooding one weekend in April 2000 at the campus, they contracted toxic encephalitis, a swelling of internal organs, along with fatigue, memory loss, vertigo, and respiratory ailments.”

This Tech Bulletin on Mold & Workers Comp presents and excellent overview of the workers comp issues. (pdf file)

“The proof issues for determining compensability in mold exposure claims are the same as the proof issues for claims alleging “sick building syndrome” and multiple chemical sensitivities. In cases where the compensability of claims alleging sick building syndrome or multiple chemical sensitivities have been denied, the courts have reasoned that since there is no specific diagnosis attributed to the sick building or chemical exposure there is no definitive cause and effect relationship. The employee’s symptoms are considered to be an ordinary disease of life.
Since there are conflicting reports from the medical community as to the relationship of the exposure to certain molds and health problems, the same cause and effect issues for occupational exposure versus ordinary disease of
life exist for workplace mold exposures. Other possible exposures to mold outside the workplace, such as in the home, are likely to be an issue in those cases.”

In addition to testing basic issues of compensability, toxic mold will no doubt pose challenges to the exclusive remedy provision of workers comp. In an effort to secure richer remedies than those afforded by comp, plaintiff and class action attorneys are likely to pursue willful or intentional conduct suits.
Like many issues, the best defense is often a good offense so employers would do well to prevent or address any mold exposures before they pose a problem to the health of workers. Recommendations and resources are available from OSHA in its Brief Guide to Mold in the Workplace.

Additional information:
Centers for Disease Control – Mold
Insurance Information Institute – Mold and the Insurance Industry

Is RIMS on your agenda?

Thursday, February 19th, 2004

If you are planning to attend the RIMS 2004 Annual Conference & Exhibition in San Diego from April 18-22, 2004, get your reservations in now. The deadline for early bird registrations looms. Take advantage of the $100 savings by getting your reservations in by tomorrow, February 20, 2004. Check out the RIMS Conference overview if you’d like a quick preview. Drop us a note if you are planning to attend.


Ergo tips – workstation ergonomic design

Sunday, February 15th, 2004

Does your work keep you tied to the computer? Or too much time spent blogging? Cornell University Ergonomics Web offers several resources to help prevent back, wrist, or eyestrain. They offer a pictorial guide to setting up workstation components to prevent injuries and to ensure comfort while you work or play at the computer. They also have a “where it hurts” ergonomic guide that offers suggestions to address any discomfort or pain that you might experience.
For another pictorial guide, try OSHA’s computer workstation ergonomics e-tool, including a handy one-page workstation set-up and purchasing guide checklist. And Healthy Computing’s office ergonomics offers set-up tips, a buyer’s guide, and a variety of other resources, including a list of office exercises and stretches you can do at your seat to relieve stress in your back, eyes, wrists, hands, neck, and shoulders.

A new prescription for back pain

Wednesday, February 11th, 2004

I have long suspected that the way this country treats back pain for work-related injuries is not only ineffective, it’s actually destructive. I have seen countless back claims degenerate into permanent and total disability following surgery. We are now beginning to see data that bears this out. In an article with profound implications for employers, insurers and workers with lower back pain, New York Times (free registration required) reporter Gina Kolata demonstrates the futility and the ineffectiveness of our current approach to back pain. The data calls for a transformation of the treatment paradigm itself.
Here’s the way it works now: A worker suffers a lower back strain. He’s in a lot of pain. He goes for an MRI, which reveals a herniated disc. The insurer assumes that the herniation is work related, the condition is compensable and treatment begins. Perhaps surgery is performed. However, a number of studies have suggested that in 85% of the cases it is impossible to say why a person’s back hurts. Beyond that, many studies have found that abnormal disks are usually inherited, with no links to occupation, sports injuries, or weak muscles. So the use of the MRI to confirm compensability is indeed questionable.

Then there is the issue of treatment. Studies confirm that there is little evidence that aggressive treatment is in any way helpful to the patient. One doctor quoted in the article says, “Maybe you are better off not going to a doctor.” Under the current system, if the employee is lucky, neither the treatment nor the surgery will permanently disable him and, eventually, he will return to work. The irony is that in most cases, doing nothing at all would be equally or even more effective than treating the injury with conventional medicine!

So what is the new treatment paradigm? In the view of Dr. James N. Weinstein, a professor of orthopedics and editor in chief of Spine, we should teach people to live with pain, to put aside the fear that any motion will aggravate their injury. This is a concept that many Americans have trouble accepting. If we experience pain, we seek an immediate cure. For back injuries, this approach just doesn’t work. We have to learn that “hurt doesn’t mean harm.” There will be pain for a while. During the natural recovery process, treatment should focus on “functional restoration:” That means working on training, strength, flexibility and endurance. And let’s not forget to offer the needed counseling that addresses fears of reinjury, anxiety, and depression.

Which brings me back to the employer’s best tool for fostering an active (but not necessarily pain free) recovery: Modified duty. Once we recognize that the vast majority of back injuries resolve themselves in a few months, with little or no treatment required, the need for proactive employers to help injured employees through the process – and the pain – becomes paramount. By providing modified duty, we give injured employees a reason for getting up in the morning and a place to go. We give them meaningful tasks, which help take their minds off the pain. Above all, we help them maintain their identities as productive workers. This is by far the most effective and the least expensive approach to lower back injuries. As with so many other workers compensation issues, proactive management is the best solution.

Mandatory English at the workplace?

Tuesday, February 10th, 2004

As U.S. demographics continue to shift, one of the tough issues facing employers is an increase in the multilingual work force. Some employers mandate English-only in the workplace, but should they? Discrimination suits based on such policies are on the increase, yet employers defend the practice on the basis of business necessity, productivity, safety, and the like. The EEOC keeps a sharp eye out for potential violations of the Civil Rights Act, and fines can be steep. Employers certainly need to be aware of EEOC Speak English-only Rules.

Culling from several sources including his own personal experiences, George’s Employment Blawg has a thoughtful exploration of this complex topic that’s well worth a read – we won’t try to duplicate his excellent research here. Don’t miss his sensible recommendation and sample policy at the end of the post.

This issue of workers who have a limited command of English or for whom English isn’t the first or native language is of great interest to us in terms of safety and prevention. Non-English speaking workers are frequently at greater risk in the workplace than their English speaking colleagues. For example:

“The Bureau of Labor Statistics reports that 815 Hispanics were killed on the job in 2000, an 11.6 percent increase over the previous year. This double-digit increase stands in sharp contrast to the two percent decrease in workplace fatalities for all workers.
The death toll for Hispanic workers is even starker in the construction industry, which leads all industries in fatal accidents. In 2000, construction fatalities overall dropped three percent — the industry’s first decline since 1996. The number of Hispanics killed at construction sites, however, jumped 24 percent.”

What are some best practices in this area? We certainly don’t pretend to know them all, but we’ve seen a few over the years: native speakers hired as translators to help train and orient new workers; telephonic translation services; worker buddy or mentor programs; on-site English-as-second-language classes that focus on workplace issues.

Here are a few articles resources on the topic, and hopefully as we explore this issue further over time, we can bring you more.
OSHA: Listos para ayudarle – Ready to Help You
The Language of Safety