Archive for September, 2007

Illegal Immigrants: Rolling Up the Welcome Mat?

Thursday, September 27th, 2007

The stalemate in Congress over legislation dealing with illegal immigration has given rise to action at the local – very local – level. A few communities with large immigrant populations have passed ordinances that try to make it difficult for undocumented immigrants to settle. These ordinances are bumping up against the federal courts, where immigrant advocates have aggressively challenged their legality. The issue is one of jurisdiction: immigration is clearly a federal issue. But the feds are paralyzed. They cannot agree on anything. Does that open the door for local action? Apparently not.
Hazelton is set in the foothills of the Pocono Mountains of Pennsylvania, 80 miles northwest of Philadelphia. It’s a small, struggling town that became a magnet for illegal immigrants. Led by recently-elected Mayor Louis Barletta, Hazelton was the first local community to take action against illegal immigrants, barring them not just from renting, but from purchasing just about anything. Here’s the ACLU’s summary of the ordinance:

Under the ordinance, landlords and business owners would have been obliged to confirm that tenants and customers are legal residents before providing them with any service, even something as simple as selling them a soft drink. The ordinance defines certain persons as “illegal aliens” using a definition so broad that it actually includes lawful residents and naturalized citizens. There is no provision for training business owners and landlords how to decipher complex immigration papers.

Enforcement of the ordinance, approved July 13, was slated to begin on September 11. Under the ordinance, property owners were subject to fines of more than $1,000 a day for renting to individuals classified as “illegal aliens,” and business owners could be fined and have their operating licenses suspended for hiring “illegal aliens” either knowingly or unknowingly. In addition, businesses would be barred from selling merchandise to “illegal aliens,” including basic necessities such as food.

Federal Judge James Munley put a stop to this ordinance back in July, prior to implementation. He wrote that illegal immigrants had the same civil rights as legal immigrants and citizens. “Hazelton, in its zeal to control the presence of a group of people deemed undesirable, violated the rights of such people, as well as others in the community.”
It would have been interesting (and tragic) to watch a community try to implement this type of ordinance. How would you enforce it? You walk into a building to rent an apartment. If you “look” native born, you have no problem. If you speak with an accent or “look foreign,” you have to provide proof of citizenship. Gee, that’s reasonable, isn’t it? In the meantime, have a look at Hazelton’s website. It opens with a letter from the Mayor: “Dear friend,” he writes, “Let me begin by saying welcome.” Yeah, right.
Rethinking Down by the Riverside
Last year, Riverside NJ, a town of 8,000 residents, enacted legislation penalizing anyone who employed or rented to an illegal immigrant. Within months, most of the hundreds of illegal immigrants left the community. The ordinance really worked. Unfortunately for Riverside, the downtown is now boarded up. The economy has ground to a halt. And the town finds itself with mounting legal bills due to lawsuits challenging the law. The legal battle has forced the town to delay road projects and the repair the town hall.
Former Mayor Charles Hilton, a supporter of the ordinance, acknowledges that the business district is now “fairly vacant.” “But it’s not legitimate businesses that are gone, it’s all the ones that were supporting the illegal immigrants, or, as I like to call them, the criminal aliens.” In other words, legitimate businesses who catered to undocumented customers became illegitimate in the process. This is more than a slippery slope: it’s a steep chute to a very dark place indeed.
The immigration problem can only be solved at the federal level, even though a solution appears well beyond reach at this time. Local communities may be tempted to seize the initiative and solve the problem in their own ways, but these efforts are doomed to fail. They are as just and equitable as a lynch mob. It wasn’t (and isn’t) fair when local communities routinely discriminated against people of color. It is not fair for communities to try to figure out who is in the country legally and who is not. We have a big problem for sure, but there are no solutions at the local level.

Brave new world: genetic testing and workers compensation

Wednesday, September 26th, 2007

The good news is there are new technologies that hold the promise of ending fraudulent or inappropriate disability and workers’ compensation claims. The bad news is that you’ll need to get in the business of harvesting and tracking your employee’s DNA to get there, venturing into relatively uncharted legal waters. Workforce Management and BBC both discuss the new technologies in DNA Technology May Curb Bogus Disability Claims and DNA test hope over damages claims. According to the Workforce article:

Developed by the Cytokine Institute, a research and consulting firm affiliated with the University of Illinois College of Medicine at Chicago, the technology uses DNA to determine a link between exposure to a toxin and a serious illness. It does so by identifying a toxin’s unique DNA signature on a person’s affected cells.
The technology, launched in June, has already been used in two dozen civil lawsuits between workers and insurance companies to verify the connection between exposure to toxins and a serious illness, says CEO Bruce Gillis, a doctor specializing in medical toxicology.
“It will get rid of all the nuisance and frivolous lawsuits once and for all,” Gillis says.

In addition to the application for illnesses and exposures to toxins, testing may also be able to tell if an injury has even occurred. The Workforce article also discusses technology that can measure cytokines or small proteins in a person’s cells, which elevate when an injury occurs. Cytokines can be measured as a before and after baseline to verify that an injury has occurred.
Exercise caution when jumping in the gene pool
Before you get too excited, you might check in with your lawyers, many of whom are likely to advise caution due to potential problems with privacy and discrimination issues. While there are no federal prohibitions against genetic testing, at least 30 states have laws that may say otherwise. HR Hero sheds light on the status of federal legislation putting limits on genetic testing in Lifeguard on duty: Congress patrols the gene pool, excerpted from Arizona Employment Law Letter. While many of the legal prohibitions deal with matters related to hiring discrimination and insurance denial rather than work injuries, attorneys advise a conservative approach in matters dealing with employees’ genetic information.
Genetic testing is already a hot button employment issue. Its application to workers’ compensation and other disability matters is an issue that bears watching. For a handy reference guide, the National Conference of State Legislatures offers a chart on State Genetics Employment Laws.

NY Reforms: Chaos Postponed?

Tuesday, September 25th, 2007

The Property Casualty Insurers Association of America has issued a bulletin to its members, announcing the deferment of the onerous new comp coverage requirements in NY (see our recent blog here). At this point it appears that carriers do not have to specifically name New York on any policy where an employee from out of state might possibly do business in the state. That’s good news.
Or is it? Here is the actual language of the “deferment” posted by the NY Workers Comp board:

The 2007 Workers’ Compensation Reform Legislation includes coverage requirements for out-of-state employers with employees working in NYS. The Workers’ Compensation Board is currently reviewing this provision, along with the comments and concerns of its stakeholders, and seeking appropriate assistance to develop the rules implementing the section of the new law.
This web site will be updated with the implementation rules as soon as they are promulgated.

Perhaps it is my training as an English major, but I cannot find any specific deferment of the law in this passage. To be sure, they are “reviewing” the statute and “seeking assistance” in developing rules. But nowhere does the posting say that implementation of the statute has been postponed. Perhaps the board does not have the authority to issue such a deferment. Carriers apparently don’t have to worry about being held accountable to the new statute at this time. But the statute is still on the books and technically is still in effect. The WCB has stated verbally that they will not enforce the law, but when it came time to put pen to paper (or finger to keyboard), they balked. Does it matter? Let’s hope not.
Meanwhile, we reiterate the Insider’s position: this particular part of NY reform does not need rules for implementation. It needs to be tossed out. We’ll keep you posted.

Compensable Suicide in MA

Monday, September 24th, 2007

Gilbert Dube was a mechanic with a chronic back problem. He was working for National Fiber Technology LLC in Lawrence, MA, when he re-injured his back on November 7, 2001. He tried to return to work on a light-duty basis a couple of weeks later, but his employer informed him that there was no light duty available. (Red flag number one.) On December 4, he was terminated. (Red flag number 2.) On December 18, less than six weeks after the injury, Dube committed suicide. His widow filed for workers comp death and burial benefits. She prevailed at the industrial accident board. The carrier appealed, but three justices of the appeals court (McCarthy, Horan and Fabricant) found in her favor as well.
The insurer tried to argue that the termination – not the injury itself – was the cause of the suicide. Because bona fide personnel actions are usually not grounds for filing a claim, they sought a reversal. The justices concluded that the injury and termination were inextricably connected. And further, the statute prohibits claims that link a personnel action to a disability – – death is not a disability. The justices go all the way back to Chief Justice Rugg, writing in 1915, just four years after the workers comp law was passed in Massachusetts:

The single inquiry is whether in truth it did arise of out of and in the course of employment. If death ensues, it is immaterial whether that was the reasonable and likely consequence or not; the only question is whether in fact death “results from the injury.

Unanswered Questions
The Insider is left to puzzle over some issues that were glossed over in the ruling. First, why did National Fiber Technology not have any light duty? They make wigs and costumes, primarily those involving fake fur. (If you’re casting a Sasquatch or a gorilla in your next play, give these folks a call. Here is a link to some samples of their work.) At least some of the work – lifting and arranging fake hair! – would be very light duty indeed.
Then there is the mystery of the quick termination. Dube was injured on November 7 and terminated barely 4 weeks later, on December 4. What was the hurry? The quick trigger on termination surely raises the specter of discrimination based upon a work-related disability. Even if the employer could not accommodate Dube (they didn’t appear to try), they could have kept him on the roster, pending a more complete recovery. That would not have cost them anything and it would have provided Dube with some motivation during his recovery.
In this particular situation, everyone loses. The unfortunate Mr. Dube, first loses his job and then, confronted with the possible end of his career as a mechanic, takes his own life. His employer terminates in haste and repents at leisure. The carrier pays for the burial and provides ongoing support to the widow. In most instances, suicide is a private matter that falls outside the scope of employment. In this sad situation, suicide and employment are joined forever.
This case has important implications for MA employers. The court is saying that any suicide stemming from a work-related injury defaults to compensability under comp. The fact that a personnel action was involved is not a viable defense. The burden of proof falls to the employer and the carrier to show that the suicide was not work related. With this ruling in hand, that will be a very difficult standard to meet.

Health Wonk Review – go see Joe

Friday, September 21st, 2007

Our friend Joe Paduda has a most excellent edition of Health Wonk Review posted at Managed Care Matters, overflowing with good Friday reading. Go see for yourself why HWR is gaining a reputation as a gathering of some of the smartest minds in the online health policy world. Don’t miss Joe’s post, where he takes on the you’ll-die-before-you-get-your-MRI in Canada meme. Among other good material, there are many posts on reform-related issues, including several items on Hillary Clinton’s health care plan, several posts from physicians and a few new contributors, including a blog by the editors of the Canadian National Review of Medicine. And don’t miss this handy resource, which looks so great, we have to post it here too: 100 Web resources for Medical Professionals.

House votes to extend Terrorism Act … presidential veto expected

Thursday, September 20th, 2007

We have a fight brewing over the Terrorism Risk Insurance Revision and Extension Act (TRIEA), which the House just voted to extend for 15 years. We live in unusual times when the white knight for the insurance industry is Barney Frank and the opponent is George Bush.
The House measure not only extended the bill, but also strengthened it:

It would add group life insurance to the lines of insurance covered by the program, and it would cover terrorist attacks by Americans as well as by foreigners. It would also require commercial property and casualty insurance policies to cover losses from terrorist attacks involving nuclear, biological, chemical or radiological attacks. Typically such policies now exclude that coverage.

According to other news reports, it would also kick in at $50 million, rather than the current $100 million.
Many in the insurance industry think that such a measure is vital to ensure industry solvency in the event of large-scale terror, particularly in workers comp. In other lines of insurance, carriers can price for the coverage or can simply refuse to extend coverage, but because workers compensation is statutory, these mechanisms aren’t available.
This is likely to produce pushback from the White House – it’s anticipated that the president will veto the measure, viewing it as an unacceptable expansion to a program that was intended as temporary. The White House issued a statement saying that the most efficient method for providing terrorism coverage will come from the private sector. In response, bill sponsor Barney Frank said, “There are in our midst people who believe in the free market so firmly that they believe in it the way other people believe in unicorns.”
Get out the popcorn, this could be an interesting contest. It may be a nail-biter, too, since the current law is set to expire at the end of the year and workers comp is heading into its heavy renewal season.

NY Reforms: Chaos for Carriers?

Wednesday, September 19th, 2007

When you have a problem, you pass a law to fix it. That’s the theory, anyway. Sometimes, the legislative solution creates big, new problems. Take New York – please! In trying to solve the very real issue of rampant under-insurance and premium avoidance in the construction industry, the state has crafted an innovative solution. But the solution creates very big problems, indeed.
Under the revised comp statute, all out of state employers doing work in New York are required to carry a full, statutory NY state workers comp policy. New York must be listed specifically on the information page of the policy. The standard “other states” coverage (item C) is not considered adequate proof of coverage.
This may sound innocuous, but it’s not. First, consider the problem in defining what “working in New York” means. The term is not defined by statute, but has evolved under case law. Coverage may be required for anyone coming into the state while “in the course and scope” of employment: this would include sales and delivery people, construction workers in for a day or a week, possibly even business travelers attending a trade show.
Once you figure out who’s working, you’re stuck with the issue of proving coverage. For carriers licensed to write insurance in New York, it’s a bureaucratic nightmare, but feasible. You re-issue the policy, naming New York on the information page. But when do you do this? When is the proof of coverage required? Do you have to document coverage even when the New York exposure is miniscule or can you retrofit coverage after an injury occurs?
And what about insurance carriers who are not licensed in New York? These carriers cannot list New York on the information page, because they cannot write policies in the Empire state. So they are either forced to secure a license (how long will it take and how much will it cost?) or decline covering out-of-state employees working in New York. If they forego the licensing process, they may have to cut a check to the NY State Fund to cover payrolls for work performed in New York, at the current NY rates. Yikes! (Given the fear and uncertainty that this new requirement has already raised, there are agents for NY licensed carriers visiting neighboring states, trying to poach business from agents who lack a NY licensed carrier.)
By now you’re probably thinking that NY will work out the kinks before the new law goes into effect. Technically, the law already is in effect – it began on September 9, 2007. Of course, no one can figure out how to go about implementing it. Last week the Workers Comp Board held a conference call for interested parties. Boy, where there ever interested parties – from as far away as California. Unlicensed carriers raised the specter of a lengthy and expensive licensing process in NY. Agents asked about their own exposure in trying to keep insureds informed of their obligations under the new law. To all the many valid questions, the Board responded with a resounding “We have no idea what to tell you…We have to work it out with the governor’s staff and the Division of Insurance.”
According to the Independent Insurance Agents of NY (IIABNY), the Board is “reviewing” the requirements. Implementation of the new law is “on hold.” The Insider humbly suggests that the Board and the Governor kick this one back to the legislature. The new requirements are fatally flawed and no amount of tinkering can fix the situation. The problem of premium avoidance in construction is legitimate. This particular remedy, however, creates chaos within the insurance industry. After all, you don’t cure a headache with Actiq or Oxycontin, do you? (Then again, this is workers comp …)

Help us improve our performance!

Tuesday, September 18th, 2007

As part of our blog birthday week, we look for your help in making the blog even better. It’s been a few years since we’ve taken the pulse of our readers to learn more about who you are , why you visit the blog, and what type of information you’d like to see us talk about. Please take a brief anonymous survey to help us improve our performance – we would appreciate your input! Click here to take our Year 4 survey.
Greatest hits
For a trip back in time, here are 20 of the most popular posts from the past 100,000 visits:

Happy Birthday To Us!!!

Monday, September 17th, 2007

birthdaycake Today marks the fourth anniversary of Workers’ Comp Insider. Since the Insider was the first insurance blog, and by extension the first workers’ comp blog, in the nation, I thought that perhaps a moment of reflection might be in order. Jon gave his thoughts on “why we blog” a few days ago, but I wanted to share my thoughts on the matter.
In July, 2003, Julie Ferguson, who knows more about blogs than any three people I know, came into my office and said, “Tom, I think Lynch Ryan should create a weblog.”
Up until that time, it seemed to me that two kinds of people had blogs, rabidly radical political reporters who posted five or six times a day whenever anyone in Washington sneezed, and teenagers who wanted the world to know what they ate for breakfast. So, when Julie proposed that we join the crowd all I could say was, “Why on earth would we want to do that?” Thus began my education. Over the next few days Julie persuaded me that this was a natural for Lynch Ryan, because we had always been innovators and path-finding pioneers. Blazing the trail of insurance blogging would continue that tradition. Plus, fostering open communication between employer, employee, physician and insurer has always been one of our core missions. A blog would be the perfect medium to take that communication to an even higher level.
We went to see Chris Miller, our Internet technology guru, from Artefact Design in Worcester, MA. We said, “Chris, how’d you like to build a blog?” I think, initially, he wanted to run away, because Chris is a corporate technology specialist, and at the time there were no corporate blogs – anywhere. But, after thinking about it for a bit, he said, “Sure, why not.”
Julie discovered that inexpensive software was available to build the blog, so we anted up the licensing fee and went to work. It was Julie, too, who came up with the name, “Workers Comp Insider.” I thought it was a bit long, but, once again, she convinced me, and on 17 September 2003, the Insider was born.
That first entry arrived with a whimper, not a bang. The topic was October Events, and it was about eight lines long. Not particularly auspicious for the first insurance blog entry in America, but, then again, neither was “Watson, come here. I need you,” another communications first.
We didn’t start to count readers until February 2004. That month, we had about 75 readers per entry, and most of those were family and friends. It’s since grown to closer to 20,000 and seems to keep growing a little bit nearly every month.
The entries have changed, too. We discovered that we had quite the writer in Jon Coppelman, our resident Ivy Leaguer (Columbia, in case you were wondering). Jon is the one who set the tone for entries that more closely resemble thoughtful, well-sourced op-eds with a tiny hint of attitude. His informed and colorful posts have developed quite a following.
Since that first entry in 2003, there have been more than 800 others spanning 15 categories. Julie has created and refined our endless sidebar, and it’s become the best workers’ compensation reference library in the world. Along the way, we’ve met and come to know and respect many others who’ve joined the workers comp blogosphere. For instance, Jordan Barab, at Confined Space, who showed us what passion for safety really is; Joe Paduda, at Managed Care Matters, who brilliantly bridges the workers’ comp and health care fields; and Peter Rousmaniere’s Working Immigrants, a blog that covers an important and timely topic. We’re also proud to have played a role in helping to create and support Health Wonk Review, the premier health policy carnival or “aggregator.” And, similarly, we’re proud of our affiliation with Cavalcade of Risk. These carnivals help to foster community and promote our industry.
Early on, we decided not to allow advertising on the Insider. We wanted to keep it pure, the message focused. Every once in a while, we reconsider that (Google calls every month, or so), but, so far, we’ve held firm.
So, four years in, we think we’ve created something good, something valuable, something that helps and supports the larger community. We thank you, our readers, for your loyalty as well as your comments (yes, even when you disagree with us – we believe that if we can’t defend our position, we don’t deserve to hold it). But, most of all, we thank you for your constant encouragement over these last four years. You make us want to make the Insider ever better, the best that it can be. I promise we’ll keep trying to do that.

Justice for an Undocumented Worker?

Friday, September 14th, 2007

Here’s an update on a case we recently blogged. Edgar Velasquez worked for Billy G’s Tree Service in Rhode Island. He sliced open his face with a chain saw (ouch!). When he tried to file for workers comp benefits, his employer fired him. Edgar was an undocumented worker. The employer did not carry workers comp insurance.
On August 2, 2006, Edgar went to the Garrahy Courthouse in Providence for a hearing on his comp claim. He was met outside by immigration agents, accompanied by Billy Gorman, his former boss. As he watched the agents take Edgar away, Gorman was heard to say “Adios, Edgar.” Edgar was deported to Mexico later that month. (Gee, I wonder who dropped a dime…)
Edgar, who lives in a remote mountain village in the state of Chiapas, has not received any further medical treatment for his injury. The scar on his face is still infected. Ho, Hum. Another immigrant worker screwed by an unscrupulous employer. End of story? Not quite.
Billy Gorman has a few legal problems of his own. He is being sued by the state for running a business without the requisite workers comp insurance. And Rhode Islanders, who recognize a serious injustice when they see it, are raising money to return Edgar to this country – so he can pursue his comp claim, among other possible legal remedies against Gorman.
Ah, but how will Edgar get back into the country, when he was here illegally at the time of the injury? Germann Murguia, the Mexican consul general in Boston, says they are trying to bring Edgar back through a humanitarian visa. “This is up to the American authorities, but we are trying to do as much as possible. He deserves compensation.”
I wonder if Billy has a call into his congressman, expressing his moral outrage that Edgar might be allowed back in. “He never should have been here in the first place!”
Gorman’s lawyer, Michael St. Pierre, reports that Gorman has no assets to satisfy the claim, which exceeds $70,000 in medical bills alone. St. Pierre also says that Edgar may not have met the definition of “employee.” I guess he must have been an independent contractor.
Here’s hoping that Edgar finds his way back to America for a brief and legal visit. He needs some medical attention for his injury. And he deserves the opportunity to watch them put the cuffs on his former boss and to say, with all due sincerity, “Adios, Billy.”