Archive for October, 2005

Genetic Testing And Workers Comp

Tuesday, October 11th, 2005

In yesterday’s New York Times (the free section, registration required), we learn that IBM has a Chief Privacy Officer, which tells you something about the current state of affairs in corporate America. We also learn that IBM has issued a policy asserting that it will not use genetic information in hiring or in determining eligibility for health care and other benefits (including, I assume, disability and life insurance policies).
Before you offer a standing ovation to the CPO, remember that IBM has a vested interest in keeping genetic information off the table: as an information technology company with a increasing presence in the medical industry, IBM has a business stake in promoting genetic data gathering and processing.
There are quite a few employers who would be sorely tempted to use genetic information when evaluating job applicants or current employees. Employers who are self-insured for health care would love to screen out people with family histories of expensive illnesses. The EEOC has issued guidelines for federal employees on the use of genetic data, with congress contemplating related legislation to limit the misuse of this information among employers. But questionable use of genetic information can also flow the other way: individuals who learn that they have a genetic predisposition for a disabling illness have a strong incentive to load up on disability policies — and in doing so, they can be reasonably confident that no insurance carrier can access this information for underwriting purposes!
You might assume that genetic information would have no bearing on workers comp. Think again.
Back in 2002 the Burlington Northern and Santa Fe Railroad was fined $2.2 million by the Equal Employment Opportunity Commission for genetically testing (without permission) 36 employees who had filed carpal tunnel claims. The railroad was apparently trying to determine if the employees had a genetic predisposition for the malady — and therefore might be ineligible for comp benefits. In agreeing to settle the case, the railroad denied that it violated disability laws (specifically, the ADA), but vowed not to use genetic tests in future medical examinations.
In this particular situation, ethical issues aside, I think the railroad was pumping the side car down a dead-end spur. Even if the tests had proven positive, with some of the employees having a genetic predisposition for developing carpal tunnel, the railroad would still have to pay the claims. It would be impossible for the employer to demonstrate that the repetitive demands of railroad work had nothing whatsoever to do with the eventual malady.
Personnel Practices
In comp we say that you have to take people as they come to you. Virtually all applicants walking through the door have issues that might eventually put them on your workers comp loss runs. Prudent employers will carefully define the essential requirements of each job, specifying exactly what people must do and how they must do it. Employers can ask questions to verify the applicant’s experience and ability to perform these essential job functions. They can study prior job histories and references for patterns or problems. Once someone is hired, the employer can and should carefully supervise the work as it is being performed. Best practices focus on behavior and performance, leaving what’s hidden in the genes appropriately beyond the scope of the employer-employee relationship. Let’s hope that most employers can stay on the ethical track without requiring the services (or expense) of a Chief Privacy Officer.

Effective occupational medicine: opinions wanted

Monday, October 10th, 2005

Want to have an impact on the future of occupational medicine? Do you purchase (or influence the purchase) of occupational medicine services for your organization? Do you manage relationships with medical service providers for your company? If so, the American College of Occupational & Environmental Medicine (ACOEM) invites your opinion via an online survey. Click here to take the survey.
The purpose of the survey is to assist the American College of Occupational and Environmental medicine (ACOEM) in learning more about the current practices, priorities, and point of view of those who pay for and use occupational medical services. In particular, ACOEM wants to learn how company managers and executives in organizations are currently viewing a few major issues in organizational and occupational health. ACOEM also wants to hear what companies look for when choosing physicians to provide either hands-on or consulting medical services for their workers compensation and disability programs.
The survey is being conducted by Crescendo Consulting Group, a national research and consulting firm based in Portland, ME. Results will go directly to Crescendo Consulting Group to preserve anonymity.
The survey should take less than 15 minutes of your time, and individual responses will be confidential. In exchange for participation, ACOEM will provide an executive summary of results to any participants who supply contact information.

Results of readership survey

Friday, October 7th, 2005

Thanks to all those of you who have taken our reader survey – the survey is still active if you’d like to take it, but we thought we would report on results to date.
So far, we’ve learned that 63% of the survey respondants visit daily or several times a week; 84% rated the blog as excellent or good; 61% work in the insurance industry; 27% of respondants are clients or friends of Lynch Ryan while 73% have no connection; respondants come from 20 states, as well as Canada, Australia, and Egypt.
Areas of interest:
-Claims management 80%
-Legal issues 80%
-Medical issues 65%
-Online tools, links, resources 61%
-Safety & prevention 59%
-Employer loss reduction tips 55%
-Injured worker info 51%
-Human resource issues 47%
How respondants self identified:
-Employer/manager 22%
-Insurer or TPA 10%
-Regulator 10%
-Law 10%
-Agent/broker 8%
-Health & Safety practioner 8%
-Educator/librarian/trainer 5%
-Consultant 5%
-Employee/injured worker 4%
-Case manager 4%
-Media 4%
-Risk manager 4%
-Financial industry 4%
-Union 2%


Reducing firefighter injuries – free online symposium

Thursday, October 6th, 2005

This week is Fallen Firefighter Memorial Weekend, a time to salute the brave people who sacrificed their lives to make the world a safer place for you and me. Firefighters are out there on the front lines every day, risking injury and death. According to the Centers for Disease Control, more than 100 firefighters die at work each year. At this time of year, my thoughts turn to six hometown firefighters who died in the line of duty some half-dozen years ago.
So given that this weekend is a time set aside to recognize these fallen heroes, it seemed fitting when I got a note in my mailbox from the Public Entity Risk Institute (PERI) about a free online symposium entitled Fire Department Integrated Risk Analysis and Management that is scheduled for November 7 to 11. The program brings together authors and experts from the U.S. and U.K. to discuss an integrated risk management approach to injury prevention. According to PERI: “Each day during the program, PERI will email participants specially commissioned “Issues and Ideas Papers” that discuss aspects of the integrated risk management approach. Participants can read the papers at their convenience, and also make copies to distribute to colleagues. All enrollees can participate in an online discussion in the Symposium Center, exchanging ideas, posting comments, and asking questions about the issues and solutions presented in the papers.
What better tribute could be offered to those who previously gave their lives than to learn more about how to make work safer for all the men and women who are at risk on the job every day? Learn more, or enroll for the seminar: Fire Department Integrated Risk Analysis and Management.

Weblog roundup: health care costs, OSHA, safety, case law, brokers, trends, & more

Wednesday, October 5th, 2005

Medical inflation – B. Janell Grenier at BenefitsBlog links to and comments on the 2006 Towers Perrin Health Care Cost Survey. One excerpt: “Employees are paying 64% more in health care costs today than they spent five years ago. Employers, meanwhile, are paying 78% more in health care costs today than five years ago.”
OSHA – thanks to Mike, one of our readers, who mailed us an interesting link to The Memory Hole which has posted OSHA data on companies with the highest levels of work-related injuries and illnesses. Background info: The Department of Labor’s Occupational Safety and Health Administration (OSHA) has for several years tracked lost work day injury and illness (LWDII) rates at about 80,000 worksites in selected high-hazard industries across the country. OSHA kept secret its LWDII database, claiming that the data are confidential. Reporter David Barstow of the New York Times, seeking the names and rates of the most injury- and illness-prone worksites, requested the data under the Freedom of Information Act in October 2002. His request was rejected, and when his appeal was also turned down, he sued for the release of the data in mid-2003. As a preemptive move, in February 2004 OSHA released a list of the workplaces with the highest rates, but the list didn’t contain the rates themselves. That list can be found on The Memory Hole here.
Work safety – if you are interested in workplace safety, Confined Space should be on your reading list. Here’s a sampling of a few recent items:
Pandemic Flu Awareness Week
W.R. Grace and the asbestos-containing vermiculite exposure at several sites
Worker fatalities that OSHA ignores
New Jersey invites worker participation in chemical plant inspections
George’s Employment Blawg. Congratulations to George, Michael, and Catherine on a spiffy new look and a new site address. This is one of our favorite reads – always a good quality of information to be found.
Management – Rita Schwab of MSSPNexus offers 10 Easy Ways to Know You’re Not a Leader. If you identify with that post and want to turn over a new leaf, start with her post on Developing Effective Communication Skills.
Case law – Judge Vonada’s Pennyslvania Workers’ Compensation Journal deals with recent court rulings. The Sept 12 post deals with a case where an employee suspension was reversed due to the employer’s failure to file a Notice Of Ability To Return To Work prior the suspension. The September 3rd post deals with the case of a volunteer who was denied workers comp when he was injured while performing community service.
Health Law – via HealthLawProf Blog, an overview of the Supreme Court’s Health Law Docket, 2005 Term.
Agent domino effect – Bob Sargent of the Specialty Insurance Blog discusses the so-called agent domino effect in relation to insurance agents and their state-to-state regulatory requirements. “The failure to report an insurance regulatory violation by an insurance agent or broker (“producer”) can lead to violations in other states.
Disintermediation out, personalized service in – Anita Campbell posts on a trend that should offer some welcome news to independent agents and consultants: anti-disinternediation. For some time, it was thought the Web might empower consumers, rendering many intermediaries superfluous. Anita discusses how this concept has played out over time. While it may be true for commodity types of products and services, it has not proven true for more complex services – indeed, there may be an increasing trend to personalized service.
Salary planning – Diane Pfadenhauer of Strategic HR Lawyer reminds us that it is the time of the year when many companies should be planning for 2006 salary increases. Raises are likely to fall in the 3.5 to 3.8% range, with variable compensation increasing to about 11.4% of payroll, up from 9.5% in 2004.

Catastrophe and Risk Management

Tuesday, October 4th, 2005

Garrison Keilor, host of the Prairie Home Companion on Public Radio, recently responded to the debate over teaching evolution in high school by stating that he has seen little evidence of evolution or of intelligent design in the way the affairs of this country are being managed. Which brings us to the convergence of two obliquely related items: the aftermath of hurricanes Katrina and Rita and the pending decision on the renewal of the federal Terrorism Risk Insurance Act (TRIA). (See our previous blogs here and here.)
Our colleague Peter Rousmaniere addresses TRIA’s revewal in the current edition of Risk and Insurance. He points out that the issue is not simply a matter extending TRIA. You’ll find some people favoring extension, while others are ready for the private market to take over. Peter says this debate misses the point: neither option addresses the magnitude of the risks confronting us. Currently, we lack a viable model for addressing the impact of catastrophes — whether manmade or the acts of terrorists — on our country.
If Katrina and the subsequent evacuation of Houston taught us anything, it’s that we are woefully incapable of emptying out major urban centers even with a few day’s notice. When I saw the long lines of unmoving cars stalled out on the freeways heading out of the city, two things come to mind: “Pack up the BMW and head north” is not an adequate evacuation plan. And a lot of urban Americans don’t even own cars in which to sit, unmoving, alongside thousands of their fellow citizens.
Enhancing TRIA
Rousmaniere asks us to consider three critical factors in the TRIA renewal debate:
First, TRIA must hold insurers accountable for their actions. By categorically reinsuring every carrier at a certain level of loss, the Act eliminates incentives for prudent planning and risk mitigation. The incompetent carrier and the carrier which invests in detailed planning are treated the same.
Second, the Act does not address coverage. As a corollary to number one, the Act does not require insurers to take on potential “hot spots” in terrorist attacks. There are high profile “trophy” targets across the country, which somehow must be insured.
Third, TRIA is silent on the issue of risk management. The Act does not require insurers to undertake any prevention or mitigation investments. It’s worth mentioning, of course, that carriers oppose any such requirements. It seems that everyone is content to sit back and see what happens. If disaster strikes, we’ll load up the Beamer and head out, right?
“Intelligent Design”
If you are curious about the process for really understanding potential catastrophes and the response options, I highly recommend a study done by the Wharton Business School entitled “Tria and Beyond.” You won’t find a lot of answers here, just a lot of very intelligent questions and a nicely framed discussion. You might even call it “intelligent design” — something we could use a lot more of as we contemplate the unnerving possibilities of the road ahead.

Ballet and Workers Comp: Important Lessons in Prevention

Monday, October 3rd, 2005

When you think of ballet, workers compensation is probably not what first comes to mind. A ballerina spins across the stage with breathtaking grace, her male partner leaps across the stage in a grand jete, seeming to float in the air. Sitting in the audience, you don’t spend much time thinking about the pain in the dancers’s feet, the strain on their muscles, the possible stress fractures in their legs. My two dancing daughters remind me that ballet is more physically and mentally demanding than football. According to a 1975 study by Dr. James Nicholas in The Journal of Sports Medicine, it even ranks above bullfighting. Ballet is not for sissies.
Workers comp has become a major issue for many ballet companies. The Diablo Ballet in California has seen its workers’ compensation rates rise more than 300 percent in the past four years to where it pays nearly $100,000 annually. The Oakland ballet saw its comp costs rise from $80,000 to $140,000 per year. These are very tough numbers for non-profit organizations that depend upon revenues from public performances.
It’s not difficult to see why comp costs are so high. Dancing is high risk. When injured, a dancer is “out of work” and unable to perform. There is no “light duty” per se — you can either dance your role or you cannot. All of this leads to significant comp costs: extended periods of indemnity payments plus substantial medical bills. And as with any business, on rare occasions dance companies can be defrauded by employees who try to take advantage of the system.
Managing Risk in Dance
So how can you manage this problem? The New York City Ballet has tackled the comp problem head on. From 2000 to 2003, the number of major workers’ compensation claims made by City Ballet dancers fell 24 percent, to 29, and the weeks of disability logged by company dancers fell 46 percent, to 231. Since implementing an exemplary wellness program, costs have gone down dramatically. In 2001, the company spent $8 per $100 of payroll on comp premiums for dancers. In 2004, it cut the expense in half to about $4, a decrease attributable to fewer claims and less severity in the claims.
Erika Kinetz, who covers dance for the New York Times, details how the New York City Ballet has been able to focus on prevention among its dancers. The Company’s’ Wellness Team ran a weekend workshop for dancers at Lincoln Center in New York City, sharing the lessons of their efforts to reduce workers comp and improve dancer health. Their premise — a compelling one — is that when your jobs are inherently high risk, as dancing is, you must focus on prevention. Once a dancer is injured, there is not much you can do to control your costs.
Wellness and Dance
Most of us assume that dancers are all in great physical shape. In fact, they are usually in an extreme and quite particular kind of shape. They spend much of their lives with their legs rotated outward, their feet pointing in opposite directions (“turned out”). Women stand on the tips of their toes for hours (needless to add, toes are not designed to bear the full weight of the body). While beautiful when seen at a distance, these are not natural body postions. The dancer smiles, but sometimes beneath the smile a grimace of pain is hidden. Although flexible in ways the rest of us can only dream about, dancers tend to have little cardiovascular stamina, chronically understretched quadriceps and weak upper bodies. Therein lies their risk of injury.
The wellness workshop teaches dancers that simply attending dance class after dance class is not the equivalent of a well balanced approach to physical conditioning. Dr. Linda Hamilton, a former dancer who now provides counseling for dancers, cautions that dancers are trained to be stoic: “We can dance with sprained ankles. We can dance when we are breaking up with our boyfriends. We can dance when we are starving.” She teaches dancers to be aware of pain, because pain is bad. The workshop emphasizes the importance of a healthy diet, stress management and cross-training – for example, doing Pilates and swimming in addition to dance classes.
Lessons for the Rest of Us
Fortunately, few jobs require the training, discipline and conditioning of classical ballet. If our jobs had such requirements, most of us would be out of work. But there is in the NYC Ballet’s approach to risk management a lesson for all of us. We need to look beyond the work that is performed and keep our eyes on our workers. All jobs have inherent risks. When workers are well conditioned and alert, when they are able to manage the on- and off-the-job stresses in their lives, when they eat well and get adequate rest, and when they are passionate about that they are doing, they are more likely to perform the job well and far less likely to be injured. We may not be asked to perform arabesques and grand jetes in our daily routines, but a sound conditioning program enhances our ability to do any job more proficiently and with less risk of injury. As a result, it is clearly in the self-interest of employers to support wellness programs and build them into their core operations.