Archive for June, 2006

Thinking about the Weather

Friday, June 30th, 2006

Maybe it’s because we’ve seen so little sun this summer, or maybe because Josh, my lawyer friend, was stuck in upstate New York when 100 miles of interstate near Syracuse was closed due to flooding, or more likely it’s because I saw Al Gore’s compelling lecture/movie “An Inconvenient Truth.” But as I prepare with everyone else to celebrate this July 4th, I’m feeling a little pessimistic about the weather. Call it “global warming” or just the usual climate cycles, the consequences for risk managers and property insurers are profound.
For a primer on the insurance aspects of the crisis, check out Doug Simpson’s excellent blog, unintended consequences (great title for a blog!). He’ll link you to some startling information about coastal property insurance. He also links to the Environmental Protection Agency (EPA), which is one government agency that at least acknowledges the possibility of global warming, rising oceans and changing weather patterns. However, the EPA posts have not been updated since 2000. Perhaps we haven’t learned anything new in the past six years.
Actuarial Weatherpeople
These are difficult times for insurance actuaries. Even if you predicted last year’s record-breaking hurricane season, how could you have foreseen the amazing rain this spring and summer, inundating the northeast and Atlantic central states. Property damage has been nothing less than astounding. And the Gulf Coast is nowhere near fully recovered from Katrina, last year’s “storm of the century.”
Ah, there’s the rub. Was Katrina truly an outlyer, a once in a lifetime event, or a portent of things to come? How would you price property and business disruption insurance along the gulf coast? I’m not sure whether academic programs are combining actuarial studies with climatology, but that’s surely where the action is going to be for the foreseeable future. Wanted: actuarial climatologists. The only problem is that actuaries tend to predict the future by looking backwards and the scale of recent weather events appears unprecedented.
I suspect that the alarming graphs and charts in the Gore movie are still flashing in my head. Or maybe it’s just the relentless cloud cover that hangs over the weekend. It brings to mind a quote from Mark Twain: “Climate is what we expect; weather is what we get.” With all the recent turmoil in the weather, our expectations for climate are turned inside out. These days, climate and weather are the same: equally unpredictable. We no longer have any idea what to expect.

Big Pharma’s Charity: It’s Better to Give and Receive

Thursday, June 29th, 2006

Let’s say someone offers to pay you to do some research about their product. You set up a non-profit research entity and deposit their hefty check. What would your goal be: to prove the product ineffective? to discourage people from using it? Not likely. But how would you determine the extent to which the source of your funds contaminates the research? Would it help clarify matters if the donor gave you some stock in the company and paid you to educate other doctors about their product?
If you like murky waters, you’ll love big pharma’s contributions to the charitable trusts set up by docs around the country. In a fascinating article by New York Times reporter Reed Abelson (registration required), we read that charities established by doctors are the recipients of money to fund research: not research in the abstract, but research pertaining to the use of products manufactured by the donors themselves. This arrangement, while not inherently illegal, is loaded with potential conflicts of interest. Call it business as usual in the world of medicine.
When Charity and Profits Intersect
Abelson writes about Dr. Maria Rosa Costanzo, who made a presentation to cardiologists at a conference in March. She touted a $14,000 blood filtering device, which her research demonstrated was more effective (albeit more expensive) than intravenous diuretic drugs at removing excess fluid from patients with heart failure.
Although outside researchers raised questions about the study’s conclusions, the doctor was convinced. “We believe these results challenge current medical practice and recommendations.” She predicted many patients might benefit. Dr. Costanzo did disclose to the audience that she was a paid consultant with stock in the device’s maker, a Minnesota company called CHF Solutions. But she omitted another potentially important detail: CHF Solutions was also one of the largest donors to the nonprofit research foundation that had overseen the study. The company contributed about $180,000 in 2004.
In addition, Dr. Costanzo did not bother informing her listeners that the nonprofit entity conducting the research, the Midwest Heart Foundation, was in turn an arm of the for-profit medical group outside of Chicago where Dr. Costanzo and more than 50 of her fellow doctors treat heart patients — in many cases using products and drugs made by CHF Solutions and other big donors to their charity. Although the CHF Solutions filter has not yet won wide acceptance across the country, for physicians at Dr. Costanzo’s medical group, it is the device of choice.
If you check out the foundation’s website, you’ll see that they promote their ability to “offer our patients access to the most progressive cardiovascular treatments and preventative strategies, giving them the same opportunities as patients at university hospitals.” In other words, patients can access the latest technologies, even before they have been formally approved by the FDA. As good as this sounds, I would be surprised if the doctors disclose their financial interests to their patients. These patients might have second thoughts if they knew that the research is potentially biased from the outset.
Contaminated Thinking?
The more the Insider probes the decision-making process in medicine, the more questions we have. Why do doctors prescribe some drugs more than others? Why has oxycontin proved so popular among doctors treating workplace injuries? Why do drug companies hire ex-cheerleaders (with no background in science) to sell drugs to doctors? Do doctors think about the potential conflict between their own financial interests and the products they recommend to their patients? The ultimate question, of course, is whether patients are getting the best possible treatment, with the most effective medications, or whether the interests of the patients are subordinated to the financial interests of the doctors.
There are no easy answers. We like to think of charity and good medicine as matters of the heart. But in the world of American medical care, when you scan the doctor’s chest, you just might see something that looks less like a heart and more like a wallet.

Health Wonk Review #10

Thursday, June 29th, 2006

Emily Goodson and Jack Mason at HealthNex have done a great job hosting Health Wonk Review #10, which is now up and ready for your perusal. HealthNex, if you are not familiar with it, is a blog ” … by IBMers and Friends on Networked, Patient-Centric Healthcare,” covering such interesting topics as electronic health records, health information exchange, clinical transformation, biobanking, etc.
As with past issues, HWR is a great way to sample the creme de la creme of the health-care policy blogs. The cost of health care is of increasing importance to those of us who are interested in workers comp. When I first began working in this field, medical expenditures were about 45 percent of the claims dollar, and now medical costs represent a whopping 57 percent of total claim costs. Despite this, we don’t have a lot of clout in the overall health-care marketplace. Workers compensation represents a fairly modest part of the health care market – somewhere around 2 percent, according to our friend Joe Paduda. Our collective fate is inextricably linked to the larger health-care market so the trends certainly do bear watching.

Comp Insurers Go to the End of the Line

Tuesday, June 27th, 2006

When is an employee benefit not a benefit? When it’s workers comp.
Andrew Simpson, Jr outlines in the Insurance Journal a recent case before the US Supreme Court, which ruled in June that premiums for workers comp insurance, unlike those for health insurance, are not bargained benefits and therefore, comp insurers are out of luck when a company goes bankrupt. While health insurers have priority for payment out of bankruptcy filings, comp insurers do not.
The case is Howard Delivery Service, Inc., et al v. Zurich American Insurance Co. Howard contracted with Zurich to provide workers’ compensation coverage for its operations in 10 states. After Howard filed a Chapter 11 bankruptcy petition, Zurich filed an unsecured creditor’s claim for some $400,000 in premiums.
The high court reversed the Court of Appeals for the Fourth Circuit, which had held that payments for workers’ compensation coverage were “contributions to an employee benefit plan … arising from services rendered” and thus subject to the bankruptcy priority provision. The high court ruled instead that workers compensation premiums are more like liability premiums than employee benefit costs and as such do not fall under the section of bankruptcy code (11 U.S.C. section 507(a)(5)), which assigns priorities to unsecured creditors’ claims for unpaid contributions to an employee benefit plan. In other words, comp is the benefit that is not really a benefit.
The court found it significant that comp is mandatory while other fringe benefits are not. But this distiction itself is changing, with some states moving aggressively toward mandating that employers provide health coverage for their employees (MA recently passed just such a law). I wonder if the court’s thinking will change when health insurance is no longer optional.
Strange Bedfellows
Justice Ginsburg was joined in her majority opinion by Chief Justice John Roberts and Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen Breyer. This has to be one of the more bizarre aggregations of concurring justices in recent court history, bringing together bits and pieces of the left and the far right wings. Similarly, the dissenters are an unlikely grouping of right, left and center, encompassing Justices Anthony Kennedy, David Souter and Samuel Alito.
Unrequited Claims
I hardly need add that the insurance industry is not happy with this ruling. In this particular case, Zurich American must cover all the Howard comp claims, even though they will not collect all the premium. Bruce Wood, an industry spokesman, says: “The court simply got it wrong. The majority’s narrow focus on the priority provisions of the bankruptcy code overlooked that workers’ compensation coverage is mandatory.” [Actually, they didn’t overlook the mandatory aspect – they concluded that because comp is mandatory, it’s not a bargained benefit.]
“This decision means that an employer trying to reorganize its business will no longer be required to pay its workers’ compensation premiums. This result will jeopardize continued coverage, because an insurer now has no legal authority to compel payment of premiums and doubtful incentive to continue coverage.” [They may lack incentive to continue coverage, but they will have to provide it anyway.]
Wood also warns that self-insured employers will face similar problems. “Even though a self-insured employer is paying an on-going claim for a past injury, after a bankruptcy filing, ongoing medical treatment and cash benefits may stop because the lack of explicit priority for workers’ compensation dumps injured workers into the same category as other unsecured creditors.” [I would be surprised if a bankruptcy court allows a self-insured company to stop paying these benefits.]
Change that Law!
This court ruling places comp carriers at the end of the line for payment, not exactly where they are used to standing. The Court’s goal is “equal distribution” – they see the need to severely limit the list of priority creditors and they have explicitly dropped comp carriers from this select list. As soon as the ruling hit the streets, the phones of industry lobbyists started ringing, the Gucci shoes were polished and the reservations were made at the finest restaurants in Washington. It will take a change in the bankruptcy law to re-arrange the creditor priorities established by this ruling of the Court. By any reasonable measure, that’s a long shot, but I wouldn’t underestimate the ability of the insurance lobby to mobilize Congress. The public might not have much sympathy for insurers, but your local Congressman knows a chunk of change when he or she sees it.

Employee compensation

Tuesday, June 27th, 2006

How does your organization’s hourly wage and benefit expenditure stack up to the national average? You can find out by comparing your costs to the most recent Employer Costs for Employee Compensation report (March 2006) from the U.S. Department of Labor’s Bureau of Labor Statistics, the hourly compensation cost per civilian nonfarm worker averaged $26.86, with salaries accounting for just over 70 percent of the total, and benefits accounting for just under 30 percent. Workers compensation represented 1.8 percent of the hourly expenditure, a rate that has held steady since at least 1998. Health benefits have increased significantly. According to the report, “the average cost for health benefits was $1.72 per hour worked in private industry (6.9 percent of total compensation) in March 2006. In March 2001, employer costs for health benefits averaged $1.16, or 5.6 percent of total compensation.”
The following breaks down the hourly cost for a civilian worker by the dollar amount and percent of each specific cost component.
Component … Cost … Percent
Total compensation … 26.86 … 100.0
Wages and salaries … 18.82 … 70.1
Total benefits … 8.04 … 29.9
Paid leave … 1.88 … 7.0
– Vacation … 0.88 … 3.3
– Holiday … 0.62 … 2.3
– Sick … 0.29 … 1.1
– Other … 0.10 … 0.4
Supplemental pay … 0.67 … 2.5
– Overtime and premium … 0.24 … 0.9
– Shift differentials … 0.06 … 0.2
– Nonproduction bonuses … 0.37 … 1.4
Insurance … 2.18 … 8.1
– Life … 0.05 … 0.2
– Health … 2.05 … 7.6
– Short-term disability … 0.05 … 0.2
– Long-term disability … 0.04 … 0.1
Retirement and savings … 1.15 … 4.3
– Defined benefit … 0.72 … 2.7
– Defined contribution … 0.44 … 1.6
Legally required benefits … 2.16 … 8.0
– Social Security and Medicare … 1.51 … 5.6
– Federal unemployment insurance … 0.03 … 0.1
– State unemployment insurance …0.15 … 0.5
– Workers’ compensation … 0.47 … 1.8
The report includes detailed breakdowns for specific industry segments. Other related reports and custom reports are available at National Compensation Survey – Compensation Cost Trends.

The Lonely Death of Octavio Godinez

Friday, June 23rd, 2006

Octavio Godinez, 27, had been working as a trim carpenter with his father-in-law at a home in Coosaw Creek, South Carolina. He was shaping a shim for a door when something happened – it appears that his hand slipped and he cut himself. Normally, his father-in-law would have been there to help, but the latter had gone off for supplies. Godinez was working by himself.
He wrapped the wound as best he could, got into his truck and headed toward Summerville Medical Center, a nearby hospital. He called his father-in-law and told him about the injury. They planned to meet up at the hospital.
Godinez didn’t make it. The truck went off the road and hit a tree. There were no skid marks or other indications that Godinez had tried to brake before the crash, so in all likelihood, he had passed out from a loss of blood. The cut had severed an artery. He might have been dead before the truck hit the tree.
Working Alone
This tale raises a set of issues that many safety plans do not contemplate: the worker who is totally alone, all by himself, in a job setting brimming with hazards. Under normal circumstances, trim carpentry is not at the high end of the risk spectrum. Nonetheless, plenty of things can go wrong. The work can involve heights, lifting, and the use of power and sharp cutting tools. Cuts, strains, slips and falls are normal occurrences. Working alone substantially magnifies every risk. Conventional safety protocals require that injured employees report immediately to a supervisor. But what if there is no supervisor? Normally, Godinez had a partner, but as it happened, his partner was not there when the injury occurred.
I wonder if Godinez knew exactly where the hospital was – he was from out of state (Indiana) and was visiting with his in-laws to earn some money for his wife and son. I wonder if he had any training in emergency first aid. I wonder what kind of medical supplies were available at the jobsite. I wonder why he decided to drive himself, as opposed to calling for an ambulance. Did he have any insurance or was he an “independent contractor,” side by side with his father-in-law, another “independent contractor.” What went through his mind as he tried to figure out what to do?
It’s tempting to pass this death off as circumstantial, simply result of bad luck and bad timing. That may be true. But in the world of risk management, we pride ourselves on being able to anticipate almost every possibility. We believe that any risk can be mitigated through careful planning. I’m not sure what specific steps were needed to prevent this death, but it reminds me that solitary workers need to have a plan. I wonder how many of them actually do.

News roundup: Cavalcade of Risk, comments, lunch breaks, and quick takes

Thursday, June 22nd, 2006

Risk roundup – The second issue of Cavalcade of Risk is posted over at It’s Just Money. LA Money Guy is the host, and he’s assembled an eclectic array of posts ranging from drug caps to hurricane insurance. Check it out!
Comments – Our apologies if you’ve ever left a comment that didn’t get published here. When emptying several thousand spams from our spam trap this past weekend, we were dismayed to find about a dozen legitimate comments from you, our readers, that had been automatically routed to the spam file. Part of the reason we re-designed the site a few months ago was to incorporate a better comment filter – we get hundreds of trash comments each week, some quite vile. We thought things were working out quite nicely, but realize now that it’s been a little more aggressive than we intended. Our sincere apologies – we look forward to and appreciate your comments! We rescued about a dozen comments and rightfully restored them to the posts where they belong. We made further adjustments to the filter and hope that will do it, but we’ll be checking more carefully going forward so that we don’t lose any of your comments.
Lunch breaks – Are your employees covered by workers compensation when they are out of the office on a lunch break? Yes, according to a new ruling by the Maine Supreme Court as reported by Mark Hoffman in Business Insurance. In this case, the employee slipped on icy steps as she entered the building. The insurer contested the case on the basis of the going and coming rule, which holds that employees aren’t usually covered on their routes to and from work. However, courts often award compensation to workers who are injured in company parking lots or other areas in or around the workplace. (See our prior post on Exception to the “going and coming” rule: operating premises.) In this case, there was an additional twist: the employer was renting the office, and part of the rental contract stipulated that the landlord would keep the walkways clear of ice. Regardless, the employee’s injury would still be compensable. If the employer or insurer would like to try to recoup the costs from the third party through subrogation, that’s another matter. (Read the full court decision: Robyn D. Fournier v. Aetna, Inc., et al.)
Meatpacking hellConfined Space brings our attention to a recent series by Bob Herbert in the New York Times reporting on the brutal and dangerous working conditions at Smithfield Packing Company in Tar Heel, North Carolina. Because these are subscription only articles, we’ll link to Jordan’s two posts: Where the workers come last and Walking Into The Pit Of Hell. (See also: Blood, Sweat, and Fear: Workers Rights in U.S. Meat and Poultry Plants). Now the workers are taking their case for safety and basic worker rights the public.
Medical blogs – If you enjoy learning about emerging medical technologies, then Medgadget is the blog for you. There’s always some fascinating matter to be found. And for another interesting blog by a medical professional, check out the always fresh Emergiblog, a blog we found when Kim, a nurse who runs the blog, left a comment in one of our posts. Today, she kicks off the first edition of Change of Shift, a nursing blog carnival.
Quick takes

Unholy Matrimony: Husband and Wife Defraud the Comp System

Tuesday, June 20th, 2006

Rosamond, California is a sleepy town in the Mojave Desert, with a population around 15,000. It’s hot, flat and quiet, except perhaps for the sonic booms originating at Edwards Air Force Base, which lies 23 miles to the east. But in a scenario right out of pulp fiction, Rosamond is the scene for an elaborate case of workers comp fraud.
Until 1995 Rosemary Bunch was a payroll clerk for the Methodist Church, when she was disabled by carpal tunnel syndrome. Her husband, Robert, suffered an elbow injury at a cement plant in 1999. By 2005, both were still collecting comp. Bob was on temporary total, while Rosemary was on permanent total disability with fibromyalgia, which caused chronic pain that put her on crutches and in a wheelchair. In adition to her indemnity and medical benefits, Rosemary was awarded a full time housekeeper (40 hours a week) to handle chores, do the laundry and cleaning. And to get around town, she had the (comp-paid) services of a limo driver.
Bob and Rosemary collected over $1 million in benefits until someone apparently dropped a dime on them. Video surveillance revealed that Rosemary walked about comfortably whenever she wanted to and only used her crutches and wheelchair when dealing with the comp system. Bob took advantage of his time off on disability to climb ladders, work on the roof of a tall metal storage building and maintain their property.
When they were indicted last year, they faced up to 8 years in prison and fines of $500K apiece. They copped a plea and will be sentenced to just 90 days, along with some hefty fines.
Opportunity Knocks
This was essentially a crime of opportunity. We can safely assume that in the beginning both Rosemary and Bob had legitimate injuries. But at some point they decided that make-believe disability was a lot easier than working for a living. Who wouldn’t want a housekeeper and chauffeur to manage the annoying little details of daily existence?
I wonder whether their employers stayed in touch with them, especially in the early days and weeks of their physical problems. I wonder if the employers made any attempt at getting Rosemary and Bob back to work. (I also wonder if the Methodist Church, knowing what they know now, bothered to audit the payroll once managed by Rosemary.) Supported by workers comp, the Bunches settled into a comfortable routine, out there in the desert. If you don’t mind the heat, it’s not a bad place to live. And unlike the big cities on the coast, there isn’t much crime. At least, crime that you can readily see.

Health Wonk Review #9

Thursday, June 15th, 2006

We’re honored to host Health Wonk Review #9 here at Workers’ Comp Insider. Health wonkery is part of a long, fine tradition of social commentary on medicine, medical providers, and health care delivery systems. Witness the entertaining online exhibit from the University of Virginia Health System, Very Ill: The Many Faces of Medical Caricature in Nineteenth-Century England & France, which demonstrates that pointed social commentary on both the suffering masses and the physicians who treat them has been a popular topic through the ages.
Satire by George Cruikshank, James Gillray, Thomas Rowlandson and many others show us that health care and politics have long been intertwined, and a favored subject of complaint with the teeming masses. Since the early days of medicine, medical providers have been experimenting with various payment and compensation schemes; complaints about the high cost of medicine are nothing new.
Today, blogs are the favored podium for those who would comment on the state of medicine, medical costs, and health care systems. Blogs afford the widespread dissemination of ideas from providers, critics, and policy makers alike. And thus, following in this fine tradition, I give you Health Wonk Review #9:
Roy Poses of Health Care Renewal submits the post Resistant Strain Indeed: Research Chief Stirs Up Merck, which discusses the recent shake up in the leadership of the firm’s drug development research team, posing the question as to whether the shake-up will help or hurt. Although the new bosses seem put out about the supposed inefficiency of Merck scientists, particularly at all the efforts they spent to “check and recheck” their work, the Vioxx affair would suggest that the problems at Merck were not due to inefficiency or excessive effort spent looking for erroneous work.
Marcus Newberry of Fixing Healthcare explores the medicalization of prevention, and expresses concern about the danger of bringing prevention under the medical care system. In his post The Lifestyle Chronicles – Prevention, Where Fore Art Thou?”, he suggests that prevention is a separate branch of health care with a different mind-set, different goals, different procedures and tools from medical care.
Fard Johnmar of Envisioning 2.0 has launched a new series exploring the relationship between the FDA and the pharmaceutical industry. In the latest post in this series, he examines whether the FDA is a “paper tiger” or “overzealous regulator.” (Access his entire series here).
David Williams of Health Business Blog posts about OPB or “Other post employment benefits,” a seemingly minor accounting rule change that may hasten the demise of employer-funded retirement health benefits, in turn increasing the burden on Medicare.
Joe Paduda of Managed Care Matters reports on more reimbursement nastiness going on in California. Wellpoint has decided to pay docs less for performing procedures in hospitals than in outpatient settings; hospitals are crying foul, arguing that health plans shouldn’t be encouraging physicians to consider cost when planning treatment. Joe argues that it is well-known that hospitals use over-payments by private insurers to cover indigent care costs, a practice that is unfair to health plans and employers. He calls for both parties to stop acting like children and focus on the real issue – adequate coverage for the uninsured and universal access.
Jason Shafrin of Healthcare Economist discusses the Deficit Reduction Act (DRA) and the ways that it will contribute to reshaping Medicaid. Since the President signed the DRA in February of this year, states have been afforded more freedom in designing their Medicaid programs. His post gives a variety of examples of how some states decided to overhaul their Medicaid system under the auspice of the DRA.
Henry Stern of InsureBlog reports that Vermont is the latest state to take a whack at universal health coverage. Check out his surprising take on this attempt in his post on the big doin’s in the Green Mountain State.
Rita Schwab of MSSPNexus Blog profiles Kay Brown a Medical Staff Service Professional (MSSP) from Florida in her fourth in an ongoing series of interviews with interesting people in health care. Ms. Brown assisted her hospital in dealing with Hurricane Francis in 2004. Her interesting perspective on lessons learned during the crisis are most timely with this year’s hurricane season bearing down on Florida as we post.
Rod Ward of Informaticopia reports in from on the road. He’s been participating in blogging from the 9th International Congress on Nursing Informatics in Seoul Korea that ran from June 11-14. The Congress offered eclectic news and views on health informatics and elearning; the blog offers a day-by-day window into the activities at the conference through posts and podcasts.
And finally, here at Workers Comp Insider, my colleague Jon Coppelman explores the intersection of the ADA and OSHA standards, which are in potential conflict with the new diagnosis of intermittent explosive disorder. While managers may feel some pressure to accommodate employees with violent tempers, Jon advises employers to concentrate on the need for maintaining a safe workplace. In most cases, that means firing violent employees, regardless of their medically-based diagnosis.
Visit Health Wonk Review to review archives of past editions or to keep track of upcoming schedules and hosts. Or, if you prefer, sign up to be notified when new editions are posted.

Worker with Intermittant Explosive Disorder: “Accommodate Me…or else!”

Wednesday, June 14th, 2006

Earlier this week, our colleague Julie Ferguson blogged a new diagnosis for people with uncontrollable tempers: intermittant explosive disorder. Some call it “road rage.’ (Here in the Boston area, we call it “ordinary driver” syndrome.) Call it what you will, with an estimated 7% of the population suffering from the disorder, this scary phenomenon is an all-too-frequent presence in the American workplace. (We have blogged workplace violence a number of times, as you will see if you try the search engine on the right side of this blog.)
Which brings us to another management conundrum: you have a policy prohibiting workplace violence. You do not tolerate any employee who threatens other employees. But do you have an obligation to “reasonably accommodate” an employee who is diagnosed with intermittant explosive disorder? Are they protected by the ADA?
ADA versus OSHA
As usual with ADA issues, there is no across-the-board eligibility. It’s certainly conceivable that you might have an employee fly off the handle, then ask for “reasonable accommodation” when you move toward termination. There can be an explicit tension between the ADA’s “need to accommodate” and OSHA’s general duty clause, which mandates a safe and healthy workplace.
While a case can be made that “intermittant explosive disorder” is a disability that impacts one or more major life activities, it’s hard to lose sight of the fact that it also impacts the lives of others: not just spouses and children (the most common victims of the rage), but coworkers and supervisors as well. People diagnosed with this disorder most likely present a threat of “immediate harm” to others, and thus are likely to fall outside of ADA protection.
As a general rule, any employee requesting accommodation should be taken seriously. But as you read the profiles of those most likely to suffer from “intermittant explosive disorder,” you conclude that they will rarely request any such accommodation. They are often narcissistic. They tend to blame others for their problems. They avoid responsibility for their actions. And their remorse, while often acute, does not prevent them from repeating bad behaviors in the future. It is comparable to the husband who gets drunk, beats his wife, and then assures her it will never happen again. My advice to wives in that situation is get out immediately and don’t look back. My advice to employers is essentially the same. Violent or threatening employees should be terminated immediately. If you’re going to err, lean toward the OSHA side, not toward the ADA.
On the other hand, you just might encounter an employee who loses his temper and then makes a sincere effort to get help. He might even bring a note from a doctor! These borderline situations are the most difficult for managers to judge. If you decide to give the employee a second chance, make sure you coordinate closely with the treating professionals, train and support your supervisors, and establish a short leash for the employee, with clearly defined parameters and boundaries. It’s not easy, but that’s why managers make the big bucks.
A good resource on workplace violence can be found here (PDF). Published by Mississippi Attorney General Jim Hood, this document outlines an approach that is both comprehensive and reasonable, with useful checklists and detailed procedures for managing potentially violent employees. Although published before the promulgation of the new diagnosis for uncontrollable rage, the document is still quite useful. Just because we have a fancy new name for workers with ungoverned tempers, that doesn’t mean we now have to sit back and passively accept their abuse.