Archive for June, 2007

Heat stress rules go into effect in Washington, California

Thursday, June 28th, 2007

For the second year in a row, Washington is implementing an emergency heat-stress rule designed to protect outdoor workers. It took effect on June 5 and will run through October. The rule requires employers to provide outdoor workers with a quart of drinking water per hour, to educate employees about risk factors for heat-related illness, and to have some area to treat workers who exhibit heat-related symptoms, such as shade canopies or air conditioning.
The Department implemented the rule after the death of an agricultural worker from heat-related stress in 2005; in 2006, a construction worker died on the job while working in a trench, further solidifying the Department’s resolve about the need for such a measure.
Unsurprisingly, the measure is unpopular with several business groups, which view the rule as both needless and an intrusive layer of bureaucracy. An additional bone of contention is that business had no input into the measure. At the end of this season, the state’s Department of Labor & Industries plans to establish a permanent rule and to seek public input in the process.
California regulation was the pacesetter
Washington is not the only state with such a measure. In 2006, California became the first sate to adopt a heat stress regulation after a spike of 13 heat-related deaths in 2005. In a reminder to employers for the coming season, Cal/OSHA reviews the basic provisions:

Under the new heat illness regulation, employers are required to take four basic steps to prevent heat illness at all outdoor worksites: develop and implement written procedures on heat illness prevention; provide heat illness training to all employees; make readily available and encourage each employee to drink four 8-ounce cups of fresh water per hour; and provide immediate access to shade or any cool area out of the sun for recovery periods for at least five minutes at a time.

Coming to a state near you?
Could such regulations be the beginning of a trend that will move to other states? Last year, the Centers for Disease Control and Prevention issued a report which showed that heat-related deaths are increasing, although some think that the increase can be attributed to better tracking. The report is not specific to workplaces, but if the numbers of heat-related deaths continue on an upward trend, it is possible that we may see an increase in state efforts to protect at-risk populations, including workers
Wise employers who have outdoor workers will look to control risk and prevent heat-related illness, regardless of state mandates. Any time the temperature exceeds 90 degrees, workers should be protected. In addition to providing sufficient water and access to shade, employers should be on the alert for employees with high risk factors. Acclimation to the heat is very significant – a new worker or a worker returning from vacation is at greater risk than a worker who has been acclimated to the heat over a few weeks. Many cases of heat stress occur to workers on the first day of the job. Other risk factors may include pre-existing medical conditions – obesity, diabetes, and heart, lung and kidney disease. Workers who are on medications and workers who are nursing hangovers may be at risk because they are starting work already in a dehydrated mode. OSHA has a Quick Card on Heat Stress (also in Spanish), as well as a Fact Sheet about Working Outdoors in Warm Climates(PDF) that includes prevention tips for heat stress, along with other outdoor hazards.
Additional resources
California – Heat related illness prevention and information
Washington – Outdoor Heat-Related Illness (Heat Stress)
OSHA Technical Manual on Heat Stress
Heat Illness in the Workplace: How You Can Control the Risk
CDC Frequently Asked Questions About Extreme Heat
Heat stress: fluid and electrolyte balance can be fatal

Unsuitable Modified Duty, Wrongful Termination and Attorneys with Cash

Tuesday, June 26th, 2007

On September 10, 2001, just one day before this country’s sense of security collapsed along with the World Trade Center towers, a smaller world collapsed around Anthony Boyle, an employee of the Weyerhauser Company in New Jersey. A 600 pound bale of waxy cardboard material fell from a conveyer belt. Boyle used his back to prop it up. He suffered two herniated discs in the accident.
Then Weyerhauser tried to do the right thing. Or did they? They sent Boyle to their doctor, who prescribed some strong medication (presumably narcotics) and released him for light duty. What happened next is a little unclear, as the two available press reports (available here and here) are not consistent. It appears that the light duty work involved operating a sweeper, which had no power steering and stressed Boyle’s arms and shoulders, thus aggravating the injury to his lower back. In addition, in order to operate equipment, Boyle had to forego use of the narcotics prescribed by the company doctor. He tried to rely on aspirin to manage the excrutiating pain.
In too much pain to comfortably operate the sweeper, I’m guessing that from time to time Boyle continued to take the prescribed narcotics. At some point, he failed a company drug test. He was terminated for violating substance abuse policy.
Boyle sued for wrongful termination. A Camden jury recently awarded him $606,000, including $86,000 for lost wages, $70,000 for emotional distress and $450,000 in punitive damages. Clearly, the jury did not buy Weyerhauser’s approach to modified duty: knowing that Boyle was in a lot of pain, they put him in a position that aggravated the injury and at the same time prevented him from taking prescribed medication for that pain. Their mistake was in requiring him to operate equipment in his modified duty position. A more reasonable accommodation would have involved Boyle doing lighter tasks that did not require the operation of equipment. If such a position were not available, the company should have allowed Boyle to collect indemnity until his back improved to the point where narcotics were no longer needed.
A Word to the Wealthy
Boyle is probably satisfied with the work of his attorney, Daniel Zonies. The attorney made a good case and secured a pretty substantial payment. But a word of caution to Mr. Boyle. If he googles his attorney’s name, he will find Mr. Zonies in some pretty dubious company. He is listed among the New jersey attorneys who were disciplined in 2003. Zonies’s problem? The Office of Attorney Ethics reprimanded him for failing to safeguard client funds, failing to deliver funds properly to clients and third parties and for record keeping violations (page 57). Zonies was ordered to submit quarterly reconciliations of his trust account for two years; unfortunately for Boyle, the order expired in 2005. Boyle, currently the manager of a hardware department for Home Depot, might be better off managing the money himself.

News roundup: health care reform, nursing safety, blog discoveries, retaliation, falls & more

Monday, June 25th, 2007

Health Care Reform – Joe Paduda was blogging the Democratic candidates’ positions on health care all last week. He offers a handy summary of where candidates stand on issues related to health care and offers his own prescription for the basics in health care reform. And in today’s post, he tells us what voters want in health care.
Nursing safetyMassachusetts nurses are seeking stronger protection against on-the-job violence. Fifty percent of the nurses responding to a 2004 Massachusetts Nurses Association survey reported being punched at least once in the previous two years. Many say the problems are getting worse, and are looking to the state legislature to extend protections. Lawmakers are considering a bill that would require hospitals to conduct an annual violence risk assessment and violence prevention plans.
Blog discovery – We are happy to see that Claire Wilkinson of the Insurance Information Institute is blogging at Terms and Conditions. Her most recent post (as of this writing) is a notice about a carrier evaluation survey conducted by Willis on performance metrics.
And speaking of nurses as we have today, it’s a good day to do a shout-out to Emergiblog, a nursing blog by Kim, a San Francisco-based nurse who deals with nursing-related issues and who often manages to infuse humor and style in her presentation. She also launched Change of Shift, a carnival for blogging nurses.
Falls in construction – rawblogXport reminds us of the heavy toll that falls take, particularly in construction. See our prior post on Falls and human fall traps: Fatalities in the construction industry.
Wrongful terminations – an in-house safety inspector was awarded $2 million in back pay, punitive damages and what the jury called “aggravation, inconvenience, humiliation, embarrassment and loss of dignity.” He was formerly employed at a mine owned by Massey Energy Co. and was fired after reporting safety problems at the mine to the federal Mine Safety and Health Administration. And in New Jersey, a forklift operator for Weyerhauser Company won an award of more than $600,000 because he was fired within two months of his having been injured on the job. Most states don’t take kindly to retaliatory firings. Jurors seem to like them even less.

There Goes the Judge

Friday, June 22nd, 2007

Chris Berkheimer was appointed as a judge in the New Mexico workers compensation system on May 5, 2007. Six days later, he was placed on leave from the $93,400-a-year job. What happened in the interim? He was involved in a mediation. During a break, he propositioned the injured worker (a woman), even though (unknown to the judge) the video camera was still operating. Of course, the wheels of justice grind exceedingly fine, so we will probably never know what the judge said to the woman. We will never know much of anything about this case. Berkheimer, dismissing the charges as “not true and ridiculous,” has resigned.
Berkheimer stated in his letter of resignation to Governor Bill Richardson that “the best way for me to fight (the allegations) and protect my family was to resign.” Read that comment three times and see if you can make any sense of it. (I thought the way to protect one’s interests is to fight back – in court, no less!)
The state has agreed to pay the former judge $10,700 – 6 weeks pay – to forgo a state hearing. Berkheimer has agreed not to sue (for what?). And the critical part of the deal, of course, is that the report on the incident will not be released. The judge’s inappropriate proposition, backed up by a video, have been sealed.
With any luck, the video will find its way to YouTube. In the meantime, we are left to contemplate the delicate state of trust that comprises the foundation of our legal system. Judge Roy Pearson, Jr. loses a pair of pants to a dry cleaner and sues for $54 million (it was a nice pair of pants). Judge Berkheimer lusts after a woman trying to collect workers comp. These two clowns no longer sit in judgment, but we can only hope that reasonably judicious people will take their places on the bench.

The Big Pizza Bust

Thursday, June 21st, 2007

Thirty two Westchester county businesses were busted today for workers comp fraud. All submitted written documentation to the state that they had no employees. The nature of the businesses indicates otherwise: the list of violators is limited to pizza parlors, delis and restaurants. While it is commendable that the state is going after companies for avoiding comp, we cannot give too much credit here: it’s kind of obvious that any pizza parlor, deli or restaurant requires more than one person to operate.
Each of the business owners is charged under state workers’ compensation law and state penal law with fraudulent practices, a Class E felony; first degree offering a false instrument for filing, a Class E felony; and failing to secure Workers’ Compensation benefits for employees, a misdemeanor. The crimes are punishable by up to four years in prison.
“Workers comp fraud is a felony in New York State,” says Fraud Inspector General John H. Burgher. “We are confident that these arrests will send a clear message that we are aggressively looking for employers who don’t abide by our workers’ compensation laws.”
The Board levied a total of $550,000 in penalties among these business, which were calculated at $250 for every 10 days the employers were out of compliance prior to April 12. Following that date, a key piece of Governor Eliot Spitzer’s workers’ compensation reform initiative became effective, raising the penalty to $1,000 for every 10 days out of compliance. The employers were assessed the higher penalty for noncompliance after April 12.
Some of the fines look pretty hefty: $33,800 for Apple’s Deli; $15,300 for Mount Vernon Pizza; and a whopping $62,500 for Roberto’s Pizza and Pasta. Any way you look at it, that’s a lot of slices. Of course, the only meaningful comparison would include the total comp premiums that these businesses avoided paying. And more important, you wonder how many employees of these companies were instructed not to report injuries, or who were fired when they got hurt. How many of these employees were undocumented and paid under the table?
This is a sorry saga, indeed, where much of the pain and suffering is well hidden. You would hope that the affluent folks in Westchester County might think twice about the cheap labor and shady business practices that help support their lifestyles. But who has time for moral niceties, when you barely have time to grab a slice with pepperoni on your way to picking up the kids at soccer practice?

Cavalcade of Risk #28

Wednesday, June 20th, 2007

We’re pleased to be hosting Cavalcade of Risk as we embark on Year 2. We have a full house today, so we’ll dispense with any introductory blather and get right to the meat of the matter!
Bork Buzz – Eric Turkewitz of New York Personal Injury Law Blog looks at Robert Bork’s million dollar plus trip/fall lawsuit suit against the Yale Club, a story that has the media and law blawgs buzzing. Eric files this under “risk to your reputation.”
Shock waves in health care markets – Robert Laszewski of Health Care Policy and Marketplace Review examines a recent Wall Street Journal article that sent shock waves through the health insurance markets with the headline “Health Savings Plans Start to Falter.” Bob posits that consumer-driven health care is a concept built on a free market foundation, a foundation proving to be pretty weak.
Another country heard from… Michael Cannon of Cato@Liberty was nonplussed when looking at the same WSJ article (see the post above) about the way consumers are viewing Health Savings Accounts. He sees some initial consumer dissatisfaction as necessary and inevitable, and thinks it should mitigate with expansion.
Uncharted waters ahead for businesses and insurers. Leon Gettler of Sox First looks at some of the frightening liability scenarios that could emerge around climate change.
Money for nothing – Golbguru at Money, Matter, and More Musings wonders if free money increases risk tolerance in his post Mind Games – Guaranteed $500,000 Or A 50% Chance At $1 Million?. He points out that this is a strategy used by TV shows and gambling places to get people to take unreasonable risks.
Bridging the gap – Christina Laun of Ask the Adviser offers 17 important financial tips for women to help counter the financial disadvantages that most women face in the area of finances. Sound advice that men could benefit from, too!
How much is your life worth? – Jason Shafrin of Healthcare Economist offers a brief review of some methods economists use to measure the value of a person’s life.
The sky is fallingWenchypoo’s crystal ball says that we’ve been in a cleverly-disguised recession for some time and it may bottom out into a full-blown depression. But whether it’s a recession or a depression, the sky is falling on someone who is unprepared. She suggest there is a lot we can learn from our forebears who faced tough financial times before.
Heartless or pragmatic? – Which is more important, your job or a family member’s health, perhaps even life? Before you answer, check out a true story posted by InsureBlog’s Hank Stern. He examines a recent the case of a woman who was denied time off to donate a kidney.
Seasonal risk – David Williams of Health Business Blog looks at another type of personal risk: sun and UV exposure. He offers several resources, including the SHADE Foundation, established by Red Sox ace Curt Schilling’s wife, Sondra Schilling.
Risk and compensability – Jon Coppelman of Workers Comp Insider examines the unusual case of a worker who was injured after fainting while in the john. Who foots the bill for such unexplained injuries – the employer or the employee?
Crystal ball in workers comp – Joe Paduda of Managed Care Matters offers an insider’s take on where the workers comp market is headed.
Much ado about nothing – Tanta, blogging at Calculated Risk, questions whether the whole recent kerfuffle over sub-prime mortgage delinquencies is useful
Reducing the risks – The folks at Healthoma tell us that more fiber in our diets can help women reduce their risk of contracting breast cancer.
Dying to be thinDollymix alerts us to a new health concern. We’ve all heard of bulimia, but the newest concern on the disorder front is “Diabulimia;” young, female diabetics are skipping their insulin injections in the hopes of slimming down. Scary, and thus far under the radar.
War on dieting – Is dieting itself a major health risk? The folks at Feed Me! think so, and seem to have the science to back it up.
Surgery as prevention – Louise at Colorado Health Insurance Insider makes the case for why health insurance companies should cover bariatric surgery.
Weighing the risksFundsZine breaks things down in chunks in explaining one type of low risk mutual type funds: money market funds. Stay tuned, it’s the first in a series on the advantages and disadvantages of various mutual fund types.
Beware the lone wolf insider – ID theft still makes news (and rightly so). Ed, writing at Operational Risk Management blog, has some disturbing information on the potential for employees to exploit lax auditing protocols.
Watching the watchers – The FDA Law Blog keeps an eye on the Federal Drug Administration, and in a recent post, alerts us to a new advisory group that the FDA is looking to set up.
Punishment and rewards – Chandler Howell, blogging at Not Bad For a Cubicle, uses the current system of prison safety as his launching pad to explain the difference between progressive risk management and regressive risk management.
Time to sell your life insurance policy?Insurance Help Hub offers guidance the matter of when and why you should consider life insurance settlements.
Every picture tells a story – the Silicon Valley Blogger at Digerati Life uses photos and pictures to illustrate a lesson in the differences between stock market technical analysis and fundamental analysis.
Managing riskAtlantic Canada’s Small Business Blog notes that risk management is the process of identifying potential negative outcomes and managing them while realizing potential opportunities. They offer a primer on developing a risk management strategy for the small business.
Watch for our next issue – The Cavalcade of Risk’s July 4th issue – will be posted on July 5th, and it’s hosted by Wisdom From Wenchypoo’s Mental Wastebasket – so be sure to drop by Wenchypoo’s for some mental stimulation after your July 4 holiday!

Line of duty: nine firefighters killed in SC

Tuesday, June 19th, 2007

Today brings the grim news that nine firefighters lost their lives doing battle with a fire in a sofa store in Charleston, SC. Our hearts go out to surviving family members and the community. For those of us in Massachusetts, this is sadly reminiscent of the Worcester warehouse fire that claimed six lives in 1999. Today’s event joins the list of the nation’s worst firefighting tragedies.
The details from this event are just emerging and will no doubt be played out over the news today and in the coming days. Apparently, a roof and shelving that collapsed caused the deaths. There were no sprinklers in the building. Ironically, this tragic event occurs during 2007 International Firefighter Safety Stand Down from June 17-23, a week dedicated to call international attention to the unacceptable numbers of line-of-duty firefighter deaths and injuries and the critical issues of firefighter safety.
Lack of adequate equipment all too often a factor in fatalities
While the investigation and analysis of the fatalities in this fire will follow, all too often, a lack of adequate equipment is a contributing factor to the fatalities. Earlier this year, MSNBC produced a special report on PASS warning device failures that resulted in 15 firefighter deaths between the time the problem was first reported to the CDC and when new standards were issued. PASS devices, or Personal Alarm Safety Systems, are worn by firefighters. They serve as a locator by emitting a beep or a chirp when activated or when a firefighter is no longer moving.
In the Worcester tragedy, as in the World Trade Center, radio failure added to the event confusion. In addition, thermal imaging equipment and fireproof rope safety lines were unavailable, equipment that might have prevented the loss of life. The FEMA report of the Worcester tragedy included several recommendations:

  • Fire prevention efforts should target abandoned and even temporarily vacated building to avoid fires
  • Proper permitting and on-going building inspections for construction changes within businesses can help reduce non-compliant interior finishes that contribute to combustion
  • Large buildings such as warehouses and high rises require special search techniques and tools, including additional air tanks
  • Better techniques must be developed to better track the movements of firefighters within a structure
  • Alternative radio channels should be explored as radio channels can be overloaded at multiple alarm fires
  • Thermal imaging cameras, while expensive, are invaluable equipment for all fire departments.

Firefighters will continue to put their lives on the line to save others – that’s what they do. And we, their friends and neighbors, will continue to be grateful for their courage and sacrifice. The very least our communities should do is to make it a priority to provide them with the best prevention resources and technology that we can.
Firefighter safety – from
Firefighter Close Calls – a safety and prevention site
NIOSH Fire Fighter Fatality Investigation Reports.

Unexplained Injuries at Work

Monday, June 18th, 2007

Donald Delaware worked for Sunland Beef Co. in Arizona. He was in charge of processing hides. In October of 2004 the 71 year old took a bathroom break. The last thing he remembers is standing in front of a urinal. Co-workers found him bleeding on the floor. He suffered a concussion and some loss of memory. He apparently passed out and fell backward, hitting his head on the concrete floor.
Is this a compensable injury? The fundamental question is “why did he pass out?” Doctors could not pinpoint a cause. One consulting physician thought the fall was due to “micturation syncope” – a rather fancy way of saying “fainting while urinating.” (Note to male readers: you can add this obscure risk to the ever-growing list of bad things that can happen to good people.) If this diagnosis were conclusive, Delaware’s injury would not be compensable. Micturation syncope is not a work-related condition. However, another doctor said he could not be sure that the fall involved this specific cause. Ultimately, he stated, the cause of the fall could not be determined.
Given these facts, the administrative law judge and the appeals court ruled in Delaware’s favor. (You can read the Appeals Court ruling here.) If something unexplainable happens at work and results in an injury, the injury is likely to be compensable. The benefit of the doubt always goes to the worker. The burden of proof for presenting a specific diagnosis to rule out compensability falls on the employer. Where a definitive diagnosis might force Delaware onto his own resources, an uncertain or neutral diagnosis results in concrete benefits for the injured employee.
One final thought. We have blogged with some frequency (here and here) the ramifications of an aging workforce. Mr. Delaware was 71 at the time of the fainting spell. I wonder how long he had worked at the company and how long he was planning to work. I wonder if his age had anything to do with the fainting spell. As the American workforce ages, we are likely to see a number of cases revolving around diagnostic conundrums: is it work related or is it micturation syncope?

Health Wonk Review #34

Thursday, June 14th, 2007

For the latest reads on health policy issues – everything from Armageddon to the uterus – head on over Health Business Blog. David Williams has done a masterful job in compiling the latest Health Wonk Review.
David’s blog is always worth a read, too. We enjoyed the recent podcast and transcript of an interview with Rudy Rupak, Founder and President of Planet Hospital, one of the leading Medical Tourism companies. Rupak discusses a trip that opened his eyes to the potential for medical tourism:

“We started the company in 2002 when my fiancee and I were traveling overseas in Bangkok. I describe her as a professional patient and she got ill while we were in Bangkok and refused to go to a third-world hospital. She had visions of…you know, tents instead of buildings. And I tell her, at least get a shot of painkillers and come back to the hotel room or something. Now we go there and this hospital was just truly amazing. And, she had her own private nurse, a doctor who saw her within 20 minutes of her arrival, took ownership of the problem, and a chef to take care of her meal requirements based on the doctor’s orders. After three days stay with her medications, tests, etc., her bill was a staggering 411 dollars. And that’s when I thought there is a business here.

Also, David posts about sun exposure and UV protection – a timely issue with summer upon us — and July is UV Safety Month. David discusses the SHADE Foundation, established by Sondra Schilling (wife of Red Sox ace Curt Schilling) and offers some resources for sun protection.

Of Wooden Legs and Wooden Lawyers

Wednesday, June 13th, 2007

Chuck Bodine was an appliance repairman for Colorado based American Appliances, Inc. In June of 2005 he stepped out of a company truck and collapsed in a heap. (That’s how drivers often are injured – getting in and out of their trucks). Bodine’s artificial hip had shifted and sent him sprawling. He got a new hip, but his claim for workers comp was contested by his employer. Their attorney, Jonathan Robbins, cited an 81 year old legal precedent known as the “wooden leg” argument. Under this obscure doctrine, an accidental “injury” to a wooden leg did not qualify for workers comp. Comp covers “personal injuries” not “personal property.”
Bodine argued, naturally, that his replacement hip is an integral part of his body. “This isn’t something I can pop on and off.”
Bodine won his case in front of an administrative law judge and at the state’s Industrial Claims Appeals Panel, but for reasons unknown to the Insider, he was unable to collect a dime while attorney Robbins pursued his Quixotic appeals, all the way to the Colorado Court of Appeals. Meanwhile, unable to work, Bodine and his wife had to move in with his parents. The Court of Appeals has finally ruled in Bodine’s favor. They point to changes in the state’s comp law (in 1991 and 1994) which distinguish between internal and external prostheses. When the device is in your body, it’s covered by comp.
After two years of inordinate delays, Bodine is finally in position to collect indemnity for his many months of inactivity. Comp will also reimburse his health plan for the cost of the hip replacement. This one looks like a no brainer. But when an attorney with a theory shows up, on behalf of an employer who appears deficient in compassion and common sense, any inventory of brains is at risk.
Government Property
A Google search of “wooden legs” turned up a moving column by Beth Quinn in the Times Herald-Record about a couple of soldiers from WW II – one American, one German. Both lost legs during combat. Both suffered all their lives from recurring pain in their amputated limbs. And when they finally died, their respective governments asked that the limbs be returned. After all, these particular artificial limbs are government property. The German widow dutifully complied, but the American widow ignored the request and buried her husband with his prosthesis in place. I’m with her. If the government really wants it back, they know where to find it.
Thanks to faithful reader Jann Browning, an editor at Standard Publishing, for the heads up on this interesting case. She thought we would find it irresistible and, of course, she was right.