Archive for March, 2006

When Normal Life becomes “Mission Impossible”

Friday, March 31st, 2006

Last June during the filming of Mission Impossible 3, Steven Scott Wheatley, a Hollywood stuntman, was standing near a Chevy Suburban that was supposed to be blown up by a missile. The device planted in the vehicle detonated prematurely and Wheatley was burned over 60% of his body. He is now suing Paramount Pictures, Tom Cruise’s production company (Cruise/Wagner) and the independent contractors responsible for pyrotechnics, alleging that their negligence caused him “severe personal injury.”
It’s worth taking a few moments to read through the actual text of the lawsuit, filed by his attorneys at Federico C. Sayre. Among other charges, Wheatley alleges that the above parties failed to hold safety meetings and training in the use of pyrotechnics. (How many film crews actually meet that California-OSHA standard?) They failed to inspect unsafe conditions. He points to the parties’s “undelegable duties” in performing an “abnormally dangerous activity.” He also says that they willfully and knowingly placed a defective device in the vehicle. The law itself dictates the language of his accusations – they are trying to prove negligence. I suspect that in the pressure-packed world of film-making, safety violations are routine and “negligence” is as common as cliches in the dialogue.
Comp Pays First
Wheatley is employed by Entertainment Partners. We can assume that he is collecting workers comp for his injuries: his medical bills are being paid and he is receiving 2/3 of his average weekly wage, up to the CA maximum of $728 – although the maximum probably falls well below what Wheatley usually draws as a stuntman. (The CA maximum wage, while signficantly higher than it used to be, is still among the lowest of the major industrial states.)
Wheatley’s own employer was not responsible for the injuries. With so many business entities involved, the door to third party liability is wide open. Unlike workers comp, which narrowly defines available benefits, Wheatley is able to sue for pain and suffering, for his inability to manage his home, to show love and affection to his children, and literally, to make love to his wife. In addition, his wife is able to sue for her own (considerable) mental anguish and damages. While his workers comp claim probably runs in the middle to high six figures, the tort liability will likely be in the multiple millions.
Comp vs. Tort Liability
This case brings into stark relief the differences between workers comp and tort liability. Under comp, no matter how severe the injuries, no matter how long the recovery period, benefits are limited to lost wage recovery (up to the fairly low ceiling in CA), medical bill and pharmacy coverage (100%), and some scarring and disfigurement benefits. Comp literally does not contemplate pain and suffering, nor does it recognize the suffering of the family. It’s “no fault.” While employer negligence might result in some relatively modest penalties, for the most part, it simply doesn’t matter.
In trying to prove negligence, Wheatley’s lawyers do not necessarily have a slam dunk. Was the device in fact defective? Did someone know that it was likely to fail? Could anyone have prevented the accident? Did Wheatley in any way contribute to the danger? In the world of comp, these questions are irrelevent. The injury occurred at work and is surely work-related. How much Wheatley ultimately collects will be determined by the skill of his attorneys, matched by the plaintiff’s formidable legal team.
I expect that the lawyers will come to some agreement prior to trial, settling the case without any finding of negligence. For lawyers, it’s mission possible: coming up with a hefty dollar figure that makes the problem go away. For Wheatley and his family, regardless of the outcome of the lawsuit, it’s truly mission impossible: trying to salvage a quality life from the ruins of a single moment on the job.

The odds of health care quality

Thursday, March 30th, 2006

DB’s Medical Rants discusses an L.A. Times article that reports on a recent study in the New England Journal of Medicine about quality of health care. The study shows that, rich or poor, most people only get the right medical care about 50% of the time. This study didn’t deal with access of care; rather, it looked at the care that is provided.

“Recommended care included things that have been scientifically shown to be medically effective and are accepted as the best standard for various conditions. The researchers looked at 439 such measures of quality for 30 common medical conditions and preventive care.

For example, after a patient has a heart attack, doctors should prescribe a beta blocker, a follow-up treatment shown to save lives, but they do so only half the time. An anti-inflammatory steroid inhaler is the first line of treatment for someone with asthma, yet only one in two asthmatics receive a prescription when they need it. And patients have about a 50% chance of getting the right diagnostic test if they have pneumonia.”

Fragmentation is one of the primary reasons for the breakdown in quality that the study cites. Most people have mutiple physicians and see a variety of specialists in the course of receiving care, The study is interesting in and of itself, and DB’s comments about the survey were also noteworthy:

“… patients generally benefit when one physician understands their problems and manages all those problems. Yet our reimbursement system provides incentives against that rational system. Subspecialists can care for a single problem and receive the same (or greater) reimbursement for a visit.

If we want better quality, we must understand and learn how much time good quality takes. It will take more time for each visit, but I believe that time (and appropriate reimbursement) will be the key factor in improving health care. No other profession works under, or is asked to work under, such severe time pressures.”

It would be interesting to see how a similar health care quality study in the context of workers compensation would play out. The playing field is level among patients since work-related injuries are all covered by the same benefits, at least on a state by state basis. However, physician reimbursement is discounted right from the get-go, and networks often demand further discounts on top of that – hardly an incentive system designed to foster quality. The conventional wisdom would generally support the idea that an expert primary physician would produce the best outcomes. Fragmentation of care can be a significant issue, and it would appear that case management has evolved largely to address this and to ensure continuity of care, to expedite the recovery process, and to foster good communication across multiple providers.
Discounts continue to be one of the primary attributes that employers use as a purchasing criteria for medical care. If one accepts the premise that quality care translates to better outcomes – recovery and the return to work – then it would seem in everyone’s best interests to ensure quality. To ask physicians to do more — as they must by the very nature of workers compensation — and to do it for less seems like the wrong way to go about ensuring quality. Minimizing costs in workers compensation is largely contingent on aligning incentives for all participants – physicians are no exception.

News roundup: fraud, health care, compliance, and “quit complaining about your job!”

Tuesday, March 28th, 2006

Premium fraud – Misclassifying your employees can get you in trouble. Just ask the executives of Mayer Roofing, a southern California company that is facing a charge of premium fraud for allegedly listing workers as managers to get more favorable rates. Historically, this is one of the largest cases of premium fraud – the premium that was bilked may reach as high as $4.5 million.
Health care costs – A survey of 500 small business owners in California indicates that health care tops list of business woes. The cost and availability of health care was of concern to 91% or respondents, topping workers comp and government regulations in terms of worrisome issues.
California – Joe Paduda looks at why California’s workers comp injury rate is dropping and the effect on rates: “California’s workers comp rate roller-coaster looks to be poised to make another steep drop. The combination of the national decrease in claims frequency and the impact of reforms have led to drastic decreases in comp rates, with more likely on the way.”
Compliance – When companies get big fines for safety or labor violations, these fines make headlines. But what gets little follow-up attention is how these fines are frequently uncollected or bargained down to a fraction of the original levy. Jottings By an Employer’s Lawyer points us to a recent story on how corporations regularly avoid large, highly publicized penalties for wrongdoing. Here’s an excerpt:

When nuclear labs around the country were found exposing workers to radiation and breaking other safety rules, assessments totaling $2.5 million were quickly ordered.
A gas pipeline company was fined $3 million after a gasoline spill and explosion in Washington state killed three young people. The penalty later was reduced by 92 percent.
When coal firms’ violations were blamed for deaths, injuries and risks to miners from Alabama to West Virginia, companies were slapped with more than $1.3 million in penalties.
What happened next with these no-nonsense enforcement measures? Not much. The pipeline tab was eventually reduced by 92 percent, the labs’ assessments were waived as soon as they were issued and the mine penalties largely went unpaid.

Jordan Barab tackles the accountability issue – or lack thereof – in his recent post on the anniversary Of The BP refinery explosion that Killed 15. How much of the $21.3 million fine will BP actually pay for violations that led to this tragedy?
It is apparently a week for anniversaries of work fatalities. March 27 was the 10-year anniversary of an explosion at the Beta Steel Mill in Indiana which killed 3 workers and injured 7 others. ‘We’ve never forgotten’ takes a look back at the tragedy and its aftermath.
BlogsWorkers Work is an interesting blog that covers a grab bag of work-related topics. Examples of recent posts include such interesting stories as 10% of telecommuters work nude and Jobs where women make more money than men.
Short takes:

Avian Flu: Unprepared for What Isn’t Coming?

Friday, March 24th, 2006

We have been tracking the Avian flu pandemic – fearfully awaiting the widespread outbreak of a killer virus. Now it appears that it might not be coming, at least not from the H5 virus that has been decimating flocks of birds. According to Nicholas Wade’s article in today’s New York Times, two researchers have concluded that the avian flu virus is unlikely to become the next pandemic. Yoshihiro Kawaoka, a virologist in Japan, and Thijs Kuiken, in Rotterdam, have published their findings in Nature and Science, respectively.
That’s the good news. The bad news, of course, is that some form of pandemic is inevitable and the world is unlikely to be prepared. Scientists can only guess which virus will mutate into an easily transmissable form. Fortunately for all of us, H5 at this point needs to lodge in the lower lung, which is difficult for the virus to reach. That explains why the 187 victims to date had to live in such close proximity to the infected birds. So if you are prone to sleeping with a bunch of chickens, you are still at risk. The family members sleeping in other rooms probably are not.
Even if the sky is not falling, there is little room for complacency. The scientists quoted in the article are not pleased with the current state of preparation for a flu pandemic. They think it’s a good idea to anticipate the worst, even if it comes from a source other than Avian flu. There will indeed be a next time – it’s not a matter of if, but when. So let’s breathe a collective sigh of relief, and then get moving immediately on coordinated planning for the next pandemic.

Health wonks rule

Thursday, March 23rd, 2006

Grab a cup of coffee and drop by Kate Steadman’s place over at Healthy Policy blog to read the third edition of Health Wonk Review. Kate does a stellar job explaining why health wonks often don’t get the recognition they are due. There’s a great collection of wonky posts from the brightest in the blogosphere. If you care about health care issues, be there or be square.

Washington passes “Safe Patient Handling” legislation

Thursday, March 23rd, 2006

Few think of health care as one of the nation’s most hazardous professions, but there you have it: nurses, nursing home attendants, and other health care workers are among the nation’s most frequently injured work population, suffering from a high incidence of musculoskeletal injuries. Patient care calls for frequent lifting and moving, and this wreaks havoc with the back and shoulders. It’s estimated that as many as 12 to 18% of all nurses stop practicing due to chronic back pain. The nursing shortage means that many health care workers have to do more with less, increasing the likelihood of injury; ironically, these injuries may be a primary culprit in exacerbating the nursing shortage.
Not to mention the hazards to the patient. When you are at your most vulnerable, do you really want a single nurse to be heaving you about? Bill Cosby used to have a stand-up routine about how you never wanted to hear a doctor say “oops.” Similarly, When you are taking your first steps after major surgery, you don’t really want the nurse who is helping you to say “ouch” – a helper who is writhing in pain may not be in your best interests.
Legislators in Washington – prompted by the Washington State Nurses Association, United Food and Commercial Workers Local 141 and Service Employees International Union 1199NW – just passed a Safe Patient Handling law that requires hospitals to provide mechanical lift equipment for the safe lifting and movement of patients. According to Occupational Hazards:

“On a timeline between Feb. 1, 2007, and Jan. 30, 2010, Washington hospitals must take measures including implementation of a safe patient handling policy and acquisition of their choice of either one readily available lift per acute-care unit on the same floor, one lift for every 10 acute-care inpatient beds or lift equipment for use by specially trained lift teams.”

In August, we reported on Texas legislation that required nursing homes and hospitals to implement safe patient handling and movement programs. Most importantly, both laws have provisions that protect health care workers from reprisals should they refuse to perform patient handling that they deem potentially harmful to themselves or their patients.

The Looming Shadow of the Uninsured

Tuesday, March 21st, 2006

The National Coalition on Health Care reports that the percentage of Americans with insurance is declining and is now at the lowest level in more than a decade. The lack of insurance has powerful implications for adults and children alike, but given The Insider’s focus on the workplace, we’ll limit our discussion to the workers who lack insurance.
In 2003, 27 million workers were uninsured. This is a vast understatement, of course, because it does not take into account the millions of undocumented workers who not only lack health insurance, but all other benefits that accrue to normal employees. The 27 million is probably closer to 35 or even 40 million. In any event, there a number of reasons why working people don’t have insurance: it might not be offered by the employer (increasingly prevalent among small employers and certain large employers with whom Insider readers are quite familiar); they cannot afford the coverage that is offered by the employer (high premiums, high co-pays, high deductibles); they don’t qualify for coverage (part-timers); or they have moved from job to job and are outside the vesting period for coverage.
Whatever the reason, there are millions of workers without health insurance. We can safely assume that these people ignore most preventative health measures: annual check ups, regular medication for ongoing conditions, etc. They postpone treatment as long as possible, and straggle into emergency rooms when they can no longer stand the pain or discomfort. So what? Why would an employer care about these “non-work related” conditions?
The Workers Comp Intersection
It’s pretty easy to imagine the circumstances where these uninsured employees may find themselves on workers comp: first, poor health can make concentration difficult; people suffering from untreated conditions are at risk for making mistakes on the job. To cite an extreme example, an employee with an untreated seizure disorder is at very high risk for injury. Equally important, these people may lack health insurance, but most have a generous indemnity plan, one which comes with no co-pays, deductibles or premiums for the employee. In other words, while health care coverage is declining, workers comp is virtually universal. If you work for someone, you’re covered.
I am not suggesting that employees lacking health insurance will go out of their way to find ways of filing comp claims. After all, the health condition would have to be work-related to qualify under comp. Few conditions would meet that standard. No, I’m not concerned about fraud, but about safety. I spent a few days last week at a pipe manufacturing plant, where molten scrap metal was poured into molds to make water and sewer pipe. As I watched the ironworkers tend the molds and machines, I wondered how well they could concentrate if, for example, they suffered from an untreated ulcer, or a cataract, a bum knee or the onset of diabetes. With most physically demanding jobs, one moment of inattention, one distraction, is enough to cause serious and occasionally catastrophic injury. The margin of error for many workers is very small indeed.
All of which leads me to a fundamental question: how can a company establish a credible safety program if their employees lack basic health insurance? No safety protocol can anticipate the impact of undetected personal health problems on the employee’s ability to perform the work safely.
There are many dimensions to the health care debate, most of which are far beyond the scope of this blog. But I am struck by this conundrum: safe workplace programs assume that workers are healthy enough to perform the work. If there is no health insurance, for whatever reason, how can you be sure that your employees can perform the work safely? Under OSHA’s General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act), employers must furnish employment and a place of employment “which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . .” As the number of uninsured workers grows each year, the risk of serious injury grows with them. Eventually, this country will probably find the will and the resources to solve this problem. In the meantime, let this be warning to the myriad employers who cannot or will not provide health insurance to their employees.
Thanks to our vigilant colleague, Joe Paduda, for his heads up on this data.

News updates: industry buzz, Kansas legislation, eye safety, and more

Monday, March 20th, 2006

Industry buzzIs there a St. Paul Travelers and Zurich merger afoot? Despite a recent Wall St. Journal article saying this was under discussion, the companies say no. Something to keep an eye on. Meanwhile, Joe Paduda tells us that long-time CEO of the Louisiana Workers Compensation Commission (LWCC) Steve Cavanaugh is moving to a start-up in Texas, and Kristen Wall, LWCC’s current COO will be taking the helm.
Eye safety – March has been designated as Workplace Eye Health and Safety Month by Prevent Blindness America, who tell us that more Than 36,000 employees injured their eyes at work seriously enough to require time off. Manufacturing or production jobs had the highest eye injury rates, followed by installation, maintenance and repair, and construction. Most of these injuries were preventable with the proper eye protection.
Kansas and pre-existing conditions – last week, the Kansas House narrowly passed a bill that would reduce worker benefits and it is awaiting gubernatorial action. The major changes in the law revolve around pre-existing injuries. There is already a law that allows employers to adjust claims based on pre-existing injuries, but the new law would require less proof from employers. Opponents say this would penalize workers and would lead to dueling doctors and increased litigation. Gov. Kathleen Sebelius is an opponent, and is on record saying the bill goes too far toward stripping employee rights, so we will see if she adds her signature or vetoes the hotly contested bill.
Work fatalities – Tina at Confined Space brings us the The Weekly Toll.

A Footnote on the Road to Oblivion

Thursday, March 16th, 2006

The Insider often looks at risk management issues from a personal perspective. It’s one thing to talk about confined spaces, ladder safety and personal protective equipment, and quite another to look at the myriad decisions we make from day to day that might have a lasting impact on our lives. Lift a box carelessly, you might face years of back problems. Forget to ask a subcontractor for a certificate of insurance, you might own the sub’s mistakes. And climb behind the wheel of your car after too many drinks, you crank up the engine and drive straight to oblivion.
We have been following the saga of Thomas Wellinger, a software account executive at Unigraphics Solutions in Michigan. He was driving 70 miles per hour in a 40 mph zone when he plowed into a car stopped for a left turn. He did not touch his brakes. His car demolished a small sedan, instantly killing a wife and her two sons. Wellinger’s blood alcohol level at the time was an astonishing .43. The biggest mystery is how he was able to function at all after that much drinking. Indeed, he put in a few hours at the office prior to the crash. He was either very good at masking his intoxication, or his fellow employees were so engaged in work that they somehow failed to notice his state. Then again, maybe they just thought in passing that Tom was hitting the bottle again.
Much about this sad saga is still unresolved, but we do know where Wellinger is going to be for the next few decades. The 49 year old pled no contest to three counts of second degree murder and will be sentenced to 19 + years in prison. Take a few moments to read about his victims. A once talented and generous family lies in ruins. Having survived the crash, Wellinger will have the leisure (that’s not exactly the right word) to contemplate how his drinking binge brought a sudden end to a wonderful family, along with his own career and his freedom.
In the coming months we will learn whether his auto insurer, Home-Owners Insurance, successfully cancelled his policy two days prior to the accident. Our many readers in the insurance field know that this will come down to following state procedures to the letter: providing notice to the client in the right form at the right time. We often see judges bend the rules to bring insurers and their deep pockets into the situation. We’ll also learn whether Wellinger’s employer knew about his drinking on that particular day. If a supervisor or manager was aware of his intoxicated state and did nothing to stop him from driving away, the company will be hammered under their liability policy.
The courts will ultimately put a dollar figure on this sad story, but the story itself transcends finance. There is no indication that Wellinger was a bad person or that he ever intended to harm anyone. Not many people end up in prison for their poor judgment behind the wheel. With Wellinger’s stiff sentence, he will meet a lot of folks who harmed and killed others intentionally, with hardly a second thought. I wonder how they will view Wellinger and his week-long binge to oblivion.

Keeping the multicultural workforce safe

Tuesday, March 14th, 2006

Occupational Hazards features an article about the challenges an organization faces in ensuring safety for a multicultural workforce. Often, workers from other countries or workers who don’t speak English may not know their rights, may be intimidated about speaking up or asking questions, or may not understand job instructions or job safety training.

Notwithstanding the fact that many immigrant workers, hungry for any job they can find, gravitate toward the most dangerous occupations and industries, foreign-born workers tend to bring minimal knowledge of safety practices and procedures to the job.

“In Vietnam, there’s no protection at work at all,” says Ngoc Huynh, coordinator of the Community Awareness Campaign on Occupational Safety, a Falls Church, Va.-based organization that educates Vietnamese workers about occupational safety and health. “They get used to it. When they get here, the most important thing to them is earning money, and they’ll take whatever job they can earn money from.”

The article discusses various ways that organizations are coping with this in safety training programs. We’ve discussed these issues in prior posts: Mandatory English at the workplace?; When it comes to safety, make sure you speak the same language; Qualified Interpreters can save lives; Cutural competence in healthcare and beyond.
Here are some multilingual resources that might assist in training:
Multilingual Health & Safety Resources and Workplace Health and Safety Worker Training Materials: An Electronic
Multilingual Resource List
(PDF) – Prepared by the Labor Occupational Health Program Center for Occupational and Environmental Health University of California at Berkeley.
OSHA in Spanish and compliance assistance materials or Hispanic employers and workers.
NIOSH in Spanish
CDC in Spanish and CDC information in various other languages
Canadian Centre for Occupational Health and Safety (CCOHS) is accessible in French and Spanish
Food Safety – Multilingual Resources – Signs and poster, fact sheets, brochures, guides, logs, forms, checklists, manuals in a wide variety of languages.
European Agency for Safety and Health at Work – translations available for some posted materials
MSDS Hazardous Substance Sheets in Spanish – from New Jersey’s Public Employees Occupational Safety and Health (PEOSH) Program