Tim Gee at Medical Connectivity Consulting is hosting Health Wonk Review #12 – and he has a baker’s dozen of meaty posts from around the health policy blogosphere. Well worth a visit!
Archive for July, 2006
Julio Medina was a baker for the Panera Company. He routinely moved large racks of baked goods over a greasy, slippery floor. The employer provided “slip-resistant” shoes (which didn’t work very well – they usually don’t). After complaining to his supervisor about the slippery conditions, Medina, with a smirk on his face, lifted his right leg as if to kick a co-worker (who happened to be well out of kicking range). Medina slipped and fell, spraining his wrist and suffering a hernia.
When Medina filed for workers comp benefits, his employer objected, saying that his horseplay (the feigned kick) was outside of the course and scope of employment. Panera pointed to the fact that they did not tolerate horseplay – any such activities were subject to disciplinary action.
The ALJ and the Colorado Court of Appeals sided with Medina. In their thoughtful and clearly written opinion (PDF), they cited Professor Larson’s four point test on horseplay, which examines:
1. the extent and seriousness of the horseplay. [Medina’s kick was very short-lived indeed];
2. the completeness of the deviation – in other words, how far outside of the usual course of work did the horseplay extend [Medina’s act was a direct extension of the work and the working conditions]
3. the extent to which horseplay was a regular part of the work [the court found no reason to question Panera’s contention that horseplay was generally not tolerated]
4. the extent to which horseplay is expected in the work environment [some jobs are inherently playful; we might assume that baking bread is not].
It’s important to note that the four criteria are independent of one another; you don’t need to demonstrate all four to achieve compensability. In Medina’s case, compensability was probably determined solely in point number one: this was an unpremeditated and spontaneous act arising directly from his employment. The working conditions – slippery shoes and greasy floors – contributed directly to the injury. While Panera’s appeal is understandable, there is no way that Medina loses this case.
Horseplay vs. Humor
There is an important distinction to be made between horseplay and humor in the workplace. It would be counter-productive, if not impossible, to stamp out every vestige of fun in the course and scope of the working day. Human nature requires a bit of comic relief, especially in jobs that are repetitive and boring. Humor can be a welcome relief – as long as it does not come at the expense of a class of employees – women, minorities, short people, obese people, etc. Humor often raises a number of concerns, but safety is not usually one of them.
Horseplay, on the other hand, all too often crosses a line into immediate risk of harm to workers. Medina’s injury was the result of a spontaneous and short-lived act. There’s not a whole lot management could do to prevent the injury. When employees start goofing off in a workplace full of hazards, management needs to intervene as quickly and decisively as possible. Fun ends abruptly when horseplay results in an injury. Just ask Mr. Medina.
Special thanks for the heads up on this case to Michael Fitzgibbon, whose informative and well-written blog covers employment law from the perspective of the beautiful country to our north.
Pandemics seem to be the topic of the month. Risk Management’s July issue contains an article by Darrell Knapp on Avian Flu: Bracing for a Pandemic, which analyzes the potential effects of a pandemic on various lines of insurance, along with action steps that insurers should take to mitigate risk. Essentially, the article states that a pandemic would strain but not break the system, although there could be an uptick in the numbers of failed insurers, particularly those specializing in lines most directly affected.
The Society of Actuaries assesses the state of readiness for handling a pandemic in a series of articles and white papers. And in the May issue of HR Magazine, Nancy Hatch Woodward discusses discusses the effects that a pandemic could have on the workplace.
“According to HHS, employers should reasonably expect an absenteeism rate of up to 40 percent in the middle of a severe pandemic as employees fall ill or die, leave work to care for family members, deal with grief from the loss of loved ones, look after their children (if schools close) or are just too scared to come to work.
In addition, your employees could be placed in quarantine. Or the transportation systems they count on to get to work may shut down. “The absenteeism rate will include everyone—including your leadership,” warns Donaghy.
Companies must decide the minimum number of people they will need to keep their operations running, says Dr. Myles Druckman, vice president of medical assistance for International SOS in Trevose, Pa., which provides medical assistance, international health care and security services. Some employers may even want to consider closing down during the pandemic. But most companies don’t have that luxury.”
Little of the literature specifically addresses workers compensation risks. If a worker catches the flu from a coworker, would that be a compensable illness? Not likely, since “ordinary diseases of life” are not generally compensable, unless the nature of a worker’s specific responsibilities increased the exposure, and the illness can be determined as arising “out of and in the course of employment” such as in the case of a health care worker. In an article in Insurance Journal, Robert Meder also points to workers stationed overseas and traveling workers as being potential points of exposure. Knapp’s article also notes that there will be an average of ” … three weeks of work missed by all survivors, whether they have been infected or not, due to a combination of illness, caring for ill individuals and voluntary or involuntary quarantine,” and suggests that the increased number of employees working from home would pose a challenge for compensability determinations.
Most authors agree on two things: with a pandemic, it is not a question of “if” but “when” and – insurers and employers alike – we should all have better emergency plans in place. Instead of tucking a murder mystery or the latest Stephen King book in your suitcase for vacation reading, catch up on the latest pandemic literature – truth is likely to be scarier than fiction.
More on the topic:
United we Fall: Preparing for the Next Pandemic
Avian Flu: Unprepared for What Isn’t Coming?
Preparing for Avian Flu
It’s Monday morning, as good time as any for thinking about drugs. NCCI has issued an interim update of its comprehensive study (PDF) of drugs in the workers comp system. They find that drugs as a percentage of total costs continue to rise, but at a slightly slower rate. There appears to be a slow but steady uptick in the learning curve, as the system shifts to greater reliance on generic drugs, which are now prescribed 89 per cent of the time. Because it covers only through 2003, the study still reflects a heavy reliance on Vioxx (it does slip to #6 overall, down from its prior position as #2) and on oxycontin (holding its own at #4). With two anti-inflammatories leaving the market (Vioxx and Bextra), Celebrex should strengthen its #1 position in the forthcoming studies, despite some concerns about the side effects.
In trying to figure out why drugs are such a big part of the costs in Florida, NCCI discovered that the number one drug is Oxycontin – an expensive (and addictive) pain killer. Party time for the sales reps in Florida! How about a trip to…Disneyworld?
Our colleague Joe Paduda has done his own study of drugs in the comp system. His findings appear to align with NCCI’s, with the addition of some problems emerging with third party payers.
It’s not always easy to grasp the implications of NCCI’s study. The numbers are just so large. They are the sum total of millions of prescription decisions, made by thousands of doctors all across the country. Alex Berenson in the New York Times zeroes in on one doctor, a psychiatrist, who became so fond of Xyrem, a drug developed for the treatment of narcolepsy, that he morphed into a full time spokesman (“salesman”) for the manufacturer, Jazz Pharmaceuticals. Dr. Peter Gleason was recently busted for recommending the drug for a wide range of “off label” uses, including the treatment of depression. The active ingredient in Xyrem is gamma hydroxybutyrate, or GHB, an illegal street drug with a history of use in date rape. Dr. Gleason likes the drug because it knocks you out. Ditto for the date rapers.
In a news release about Dr. Gleason’s indictment, the FBI compared the doctor to a “carnival snake-oil salesmen.” (Can you spell “defamation”?) He abandoned his private practice to become a nationwide spokesman for the $600 per month drug, even coaching doctors to leave out the “disease diagnosis” line on the prescriptions.
But is it a crime? The article quotes noted civil liberties lawyer Harvey Silverglate: “What they are doing is criminalizing conduct that is not clearly criminal.” Indeed, doctors do have the right to recommend “off label” uses for drugs. Of course, they are supposed to base such recommendations on peer-reviewed research, as opposed to the anecdotal evidence that Gleason brings to the table. When Gleason says that the drug is “safer than table salt” and “safe for children,” he has probably crossed an ethical line. The question is whether he has committed a crime.
Meanwhile, Gleason’s annual earnings in excess of $100,000 from Jazz have abruptly dried up. The company has severed ties with him. In a most intriguing reversal, it appears that Gleason refused to provide testimony against Jazz, but Jazz is cooperating with the investigation and may well be preparing to testify against the good doctor.
From this vantage point, it appears that Gleason’s overwhelming faith in the drug may prove his downfall. No one need question the sincerity of his believe in Xyrem. It’s just what he was selling (a schedule III controlled substance) and the way he was selling it, as if it were a mocha colored syrup, in a clear bottle with a cork stopper. “Just rub a bit on and all your troubles go away…”
Cavalcade of Risk #4 – Christopher at MedBill Manager is hosting a baker’s dozen of fine posts at the latest edition of Cavalcade of Risk. Grab a coffee and hunker down for a read.
More from Ohio – Robert Ceniceros of Business Insurance breaks the story that the Ohio Bureau of Workers’ Compensation will return $52 million to injured workers as a result of a class action suit involving subrogation. The court found that neither BWC nor self-insured employers should receive more in reimbursement than the actual value of the claims so the money will be returned to about 7,900 workers who were injured between 1993 and 1995. More from the Cincinatti Post
Extreme flex time – yesterday’s Morning Edition from NPR featured an interesting segment on an experiment in productivity that retailer Best Buy conducted at its corporate headquarters. In response to high turnover, it implemented the ultimate flex time program that it calls Results Oriented Work Environment (audio clip): Employees are totally free to set their own work hours as long as they get the job done. This includes choosing their own work environment – even if they want to work from home. Managers say that it has been wildly popular with workers, fostering an entrepreneurial spirit, and that they produced 20% more output in work orders.
Meet the bloggers – Pew Internet & American Life has issued a research report on blogging, finding that about 12 million American adults have blogs, and that the number of blog readers has jumped to 57 million American adults. Of course, the vast majority of blogs are personal blogs, not business blogs, which are a more recent phenomena. I guess that would put us in the 64% of bloggers who say that, “a reason they blog is to share practical knowledge or skills with others” If you are reading this blog, you are still in the early adapter crowd – currently about 39% of the web population who consumes blogs.
New York rejects a rate hike. A 7.5 percent rate hike requested by the New York Compensation Insurance Rating Board on behalf of insurers was rejected by state officials yesterday. As a reason for the rejection, officials stated that the New York market remains profitable. Officials also berated insurers for not being aggressive about pursuing fraud, and linked this as a reason for the denial. Officials cited one insurer that referred only 320 out of a potential 40,000 claims to its Special Investigation Unit for investigation out of a total policy count of over 40,000. It would seem that insurers have a vested interest in ferreting out fraud – perhaps the state’s expectations about the prevalence are unrealistic? In our experience, we find much of the talk about rampant employee fraud overinflated. It will be interesting to see what the industry response to this salvo will be.
Firefighter exposure to PCBs. The Washington Post features a story about firefighters who are developing cancer after exposure to PCBs in training exercises some 20 years ago. “At least 120 firefighters who graduated from the fire training academy in Millersville between 1968 and 1985 have been diagnosed with cancer, and at least 40 have died.” The article clearly demonstrates the uphill battle that workers face in trying to prove a casual link between an illness and the workplace. Thanks to Confined Space for pointing us to this.
Congratulations – to Michael Fox of Jottings by an Employer’s Lawyer on his reaching the 4 year mark in blogging. (A blogiversary?) We are approaching our 3 year mark this fall, and when we started, Michael’s blog was one of our inspirations and remains a favorite read. he has been consistently providing valuable information and excellent insight on employment law issues. Kudos and thanks for many fine posts, Michael!
Horseplay. Michael Fitzgibbon has a good post on horseplay and worker’s compensation coverage, discussing a recent Colorado court ruling that awarded workers comp benefits to an employee in the case of Panera Bread LLC v. Industrial Claim Appeals Office of the State of Colorado and Julio Medina (PDF). Michael offers a great overview of the four-part test the courts used in making its determination.
Avoiding heat stroke – rawblogXport points us to resources on how to avoid heat stroke, timely information for many workplaces.
FedEx drivers – more in the continuing saga of FedEx drivers seeking employment status. The issue of contractor vs. employee, particularly in the case of FedEx, is one that we’ve covered covered this issue repeatedly in several prior posts.
“A national class-action lawsuit with hundreds of plaintiffs from 30 states was filed in 2005 against FedEx Ground alleging that workers were misclassified as independent contractors.
Other cases against FedEx have already been filed and won. In June, a California Employment Development Department audit found that FedEx Ground owes the state at least $7.8 million in back employment taxes because contracted drivers were misclassified. In February, the National Labor Relations Board ruled that 23 FedEx drivers in Worcester, Massachusetts could join a union because they were employees of the company, and not independent contractors as previously classified.”
Michael Mammone worked as a receptionist at Harvard University’s Peabody Museum for seven years. All went well until he suffered a severe manic episode, described by the law firm of Goodwin Proctor as follows:
He established a website protesting what he believed to be low wages paid by the university and began to distribute flyers advertising the website while on duty at the reception desk in the main lobby of the museum. He engaged coworkers in loud and animated conversations regarding the issues addressed on his website, and frequently used his personal laptop computer to access and update the website during his shift. He sung along with, clapped to, and danced to protest songs from his website while stationed at the reception desk. When his supervisor ordered him not to use his laptop at work, he refused to obey her instruction. (Sounds to the Insider that he just wanted to behave like an ordinary undergraduate.)
As his manic episode reached his zenith, Mammone’s supervisor received a complaint that his belligerent attitude was not only affecting the museum’s staff, but also visitors to the museum. When the supervisor attempted to discuss these concerns with him in a private conference room, he refused to meet with her, stating “get away from me, you’re evil.” The situation escalated with Mammone refusing an order from the supervisor and two university police officers to leave the premises – instead, he sat in the middle of the museum lobby floor. Ultimately, he was arrested for trespass and removed from the museum by the police. Later in the day, he entered another university museum. When his supervisor encountered him there and ordered him to leave, he responded with expletives and a threatening comment and left the building.
Rather than fire Mammone imediately after he was forcefully removed from the museum, he was placed on disability leave. This leave faciliated treatment for his illness. When the leave expired after six months, he was officially terminated (although the record indicates that the university had never considered bringing him back after completion of his treatment).
Accommodate or Terminate?
The question before the court was one of accommodation. Did the University have an obligation to accommodate Mammone’s mental illness? Or did his egregious behaviour (driven, of course, by his mental illness) provide the university grounds for terminating his employment? When the University fired Mammone, he sued under the Americans with Disabilities Act for wrongful termination. In his view, the university had an obligation to accommodate him, due to his mental disability.
The Massachusetts SJC issued a summary judgment in favor of the university. Justice Cordy, writing for the majority of the court, concluded that “egregious workplace misconduct disqualifie[s] an employee from protection of the statute without regard to whether that employee could at some future date conform [his] behavior to acceptable standards.” The one dissenting justice opined that Mammone should be given the opportunity to present his case to a jury.
Justice and the Common Good
There is one aspect of this decision that puzzles me. At the height of his manic episode, there is no doubt that Mammone had to be removed from the job. But once the University facilitated treatment by putting him on extended leave, it appears that they at least cracked open a door for accommodation. During the disability leave, Mammone received treatment. His bipolar disorder came under control. When the leave ended, no one seemed to ask the question whether Mammone was ready to return to work. No one asked whether he was well enough to resume his job as a museum receptionist. Harvard had already decided to fire him for behaviour that had occurred six months prior to the treatment. The court backed the employer in this firing. Mamone apparently crossed a line during his manic phase, and no amount of treatment and no prescribed medication would enable him to retain his job.
While the court determined that Mammone’s termination was not an act of discrimination, this narrow reading of the law may not have resulted in the best course of action. Seven years of satisfactory performance disappeared in the bizarre rush of a manic episode. I wonder what would have happened if he had been given the opportunity to apologize to his supervisor and return to his job. Is the University really better off without him? Is Mammone himself any the better for having gone through this episode and returned to a relatively sane existence, albeit unemployed? In Mammone’s case, justice may have been served, but something larger and perhaps more important may have been lost in the process.
Jason Shafrin at Healthcare Economist is hosting the eleventh edition of Health Wonk Review. Do you know what HSA, RHIO, and CDHC stand for? If not, you can join the ranks of the enlightened by reading today’s issue – Health Wonk Review is a good way to keep current on trends and emerging issues in health care and health care policy.
Here’s a problem for the amateur engineers out there. If you were going to hang something from a ceiling in your home, you’d probably want to at least put a toggle bolt behind it, so that the gravity pulling the object down would be countered by a more than equal force holding it up. You’d probably take into account the weight of the object. If someone suggested that you just run a screw into the ceiling plaster and back it up with some glue, you’d say they were crazy. With all the weight pulling straight down, it would take very little pressure to strip the screw out of the ceiling.
Now let’s imagine that you are hanging three ton ceiling tiles – hundreds of them – from the roof of a tunnel. Would you assume that you could support the tiles with bolts screwed vertically into the concrete ceiling and backed up by some epoxy glue? We’re talking the force of gravity here, with a significant weight pulling down. No engineer in his or her right mind would recommend such a solution, right? Well, you’ve obviously never been an engineer on Boston’s notorious Big Dig, the most expensive highway project in history: $15 billion and counting. All that money spent and already part of the recently completed project has collapsed.
Wrong Place, Wrong Time
Two days ago a section of the ceiling in a Big Dig tunnel collapsed onto the roof of a car, killing one occupant and injuring another. Angel Del Valle was driving through the Interstate 90 connector at about 10:45 Monday night, his wife, Milena, at his side, when huge chunks of concrete and steel came crashing down on his car, nearly flattening it. Angel managed to crawl out of the wreck. His wife was killed instantly. The collapse occurred at night, when few cars were in the tunnel. If it had occurred twelve hours later, we would have a major catastrophe of unprecedented proportions on our hands.
Rolling Heads and Safe Roadways
There are all kinds of investigations currently going on, including a criminal investigation for negligent homicide. But how much background in engineering would it take to determine that the design for hanging the heavy tiles was just plain stupid? How many inspections would be needed to show that the heavy tiles were at constant risk for dropping onto the traffic below? Civil engineers said the questions must go beyond the quality of workmanship to the tunnel’s design: Why were the concrete panels so heavy, weighing 2 1/2 to 3 tons apiece? Why were they there at all, since there was already a higher tunnel roof? And why did the failure of a single steel hanger send six to 10 of the slabs crashing down?
A lot of questions, with a few prime scapegoats readily at hand. The Turnpike Authority’s ubiqitous chairman, Matthew Amorello, appears ripe for the picking. Governor Mitt Romney, anxious to preserve his presidential ambitions, has taken steps to remove him. But whether Amorello stays or goes is hardly the point. People no longer feel safe driving on the most expensive three miles of roadway in history.
In the course of our daily existence, we all perform a rather blunt calculus, weighing the relative risk in our various activities. The Insider has long understood that driving is probably the riskiest activity that most of us do. As if the risk of sharing Boston’s roadways with distracted, short-fused whackoes were not enough, we now have to worry about the roads themselves. We take so much for granted, hurtling along in our 3,000 pound vehicles. What happened to poor Angel and Milena couldn’t possibly happen to us now, could it?
Ohio BWC report out – the Office of the Inspector General of Ohio has issued a report on the its fiduciary review of the Ohio Bureau of Workers Compensation. Essentially, the report states that, since the BWC’s restructuring in the mid 1990s, too much power has been vested in the Governor’s office, resulting in a the potential for abuse of power. The report calls for the Bureau’s Oversight Commission to play a stronger role and too be more independent from the Governor’s office. Also, any investment decisions should be made “in the sunshine” in public meetings. News reports can be found at The Toledo Blade and The Columbus Dispatch. The full report and fiduciary review can be accessed here as a series of PDFs.
We have met the enemy and he is us – Specialty Insurance Blog discusses a recent Standard & Poor’s survey in which executives point to irresponsible competition as the single biggest risk facing insurers. Pricing too low? Those of us in workers comp have certainly seen that dynamic play out more than once.
The weekly toll – Thanks to Tammy at Confined Space, who has compiled the latest report on deaths in the workplace – a grim reminder of just how common these events are. And, sadly, how often they are preventable. Are your workers safe this week?
Teen safety – Thanks to rawblogXport for pointing us to Clocking in for Trouble: Teens and Unsafe Work, a report issued by the National Consumers League that discusses the five worst teen jobs:
1. Agriculture: Fieldwork and Processing
2. Construction and Work in Heights
3. Outside Helper: Landscaping, Groundskeeping, and Lawn Service
4. Driver/Operator: Forklifts, Tractors, and ATVs
5. Traveling Youth Crews
Employee communication – Diane Pfadenhauer of Strategic HR Lawyer discusses a recent Watson Wyatt Communication ROI study, which reports that, among other things, communication effectiveness is a leading indicator of a company’s financial performance.
Layoffs and terminations – Guy Kawasaki discusses The Art of the Layoff and Michael Fitzgibbon adds his thoughts on the matter, including his advice on minimizing risk in his post on 12 Thoughts on Employee Terminations.
Immigrant workers and wages – a hat tip to our friend Peter Rousmaniere at Working Immigrants for pointing us to The Immigration Equation, an lengthy article in the New York Times Magazine that discusses the issue of whether immigration has depressed wages in the United States.
Wisconsin: Tab for uninsured workers rises 13% – Wisconsin’s lawmakers are looking for ways to ensure that the state’s largest employers bear a share of health care costs for the uninsured, costs that are currently being financed by tax dollars. A recent analysis of BadgerCare recipients – a program for low-income families to access health insurance if they don’t have an employer-sponsored plan – shows the number of recipients who are employed by the state’s 18 largest employers is growing. According to The Milwaukee Journal Sentinel, the total number of employees and their spouses and dependents enrolled in the program was 5,573 in March 2006, up from 4,923 in April 2005. This issue is not isolated to Wisconsin. We’ve discussed this trend – the growing share of uninsured workers employed by large firms – several times in the past, including the impact that the uninsured can have on workers comp before.