Archive for October, 2007

Newer Entries »

Pennsylvania: Blood on the Forms?

Friday, October 12th, 2007

The good people governing the Commonwealth of Pennsylvania have a major concern. They want to make sure that each and every worker injured in the course of employment knows his/her rights and benefits under the comp statute. Most states accomplish this by requiring a posting by the employer, detailing the name and address of the insurance carrier. Employers usually include workers comp benefits in the employee handbook. It’s an employer “best practice” to fully inform employees of the need to work safely, report hazards and report injuries immediately. Most states have websites where injured workers can view the statutory benefits and the mandated procedures under comp. For the most part, injured workers seem to be able to find the comp system without too much trouble.
Well, a system that is mostly working is just not good enough for Pennsylvania. They want proof, they want documentation, and they want signatures. So they have come up with a process that requires employers to provide a form to all new employees and to injured workers at the time of the injury. The one pager, entitled “Workers’ Compensation Information,” (sort of) explains the basics of comp.
The form includes the following statement: “You (injured employee) should report immediately any injury or work-related illness to your employer.”
Department of Duh: While this language is fine when the form is provided during orientation, the same form is also given to the employee after the injury has been reported. Do you really need to tell the employee who has reported an injury to report an injury?
The one pager goes on to say that “if your claim is denied by your employer, you have the right to request a hearing before a workers’ comp judge.” Gee, aren’t we getting a little ahead of ourselves here? (And by the way, unless the employer is self-insured, the carrier – not the employer – denies the claim.)
At the bottom, the employee signs the following statement:

I, _____________, employee of ____________ (employer), certify that I received, read, and understood the above information on _____________ (date of work-related injury or disease).

Form Two
If the employer participates in a Preferred Provider Network, the employee must be given another one pager, explaining in detail the rules and procedures for the PPN. This form contains 11 bullet points in relatively small print. At the bottom of this form, the employee signs the following statement:

My signature indicates that I have been informed and understand my rights and duties pertaining to medical treatmant for work-related injuries.

With two required forms, that’s a whole lot of “understanding” under less than ideal circumstances. After all, these forms are signed at the time an employee reports an injury to the supervisor. Often enough, the employee will be suffering some pain and discomfort as a result of the injury. I’m sure the attorneys who pushed for adoption of these requirements revel in the enormous loophole contained in the concept of “understanding” the requirements. Yes, my client signed the form (under duress, while waiting for the ambulance), but he didn’t really understand what he was signing. So the employer failed in his duty…Just what we need: another opportunity for attorneys to play “Gotcha!”
When I called the PA Comp Bureau for clarification, they confirmed that two separate forms and signatures are required. I said that I hoped the injury did not involve a cut on the injured employee’s dominant hand: that might result in blood on the forms. The bureau contact laughed, albeit nervously.
Free Advice for PA
Here’s a bit of advice for the bureaucrats in the Keystone State: Chill, baby. You have a comp system that is working reasonably well. Requiring two signatures at the time of injury will not increase employee awareness of rights under the comp statute. People will sign (if their injuries permit) because they have to, but they won’t understand much of what they’re signing. Following an injury, people are mostly concerned about getting medical treatment and getting back to their jobs.
Requiring employers to retain copies of the signed documents is a random and extremely ineffective means of ensuring compliance. As my mother-in-law used to say, “Don’t borrow trouble.” With these burdensome requirements, Pennsylvania has borrowed trouble and accomplished very little in the process. There is a reason why no other state requires this type of documentation. It’s pretty darn useless – and it interrupts the natural flow of caring for an injured worker. Pennsylvania should just do away with the bloody forms.

Posted in State News | 7 Comments »

Cavalcade of Risk and the Clinton Health Reform Plan

Thursday, October 11th, 2007

Bob Laszewski of Health Care Policy and Marketplace Review hosts this week’s edition of Cavalcade of Risk noting that posts run the gamut from the traditional corporate sense of limiting “loss costs” to the less traditional popular notion of assuming individual responsibility. He offers up a good sampling of both.
We’ve had Bob’s smart blog on our regular reading list ever since our friend Joe Paduda brought it to our attention. Joe, who is no slouch himself, dubs Bob “the smartest man in health care policy.” For an example of Bob’s cogent analysis in action, be sure to read his most excellent Detailed Point by Point Analysis of Senator Clinton’s Health Reform Plan – it definitely merits your time. We look forward to having his ongoing analysis of all things health care throughout the upcoming elections.

Posted in News roundups | Comments Off on Cavalcade of Risk and the Clinton Health Reform Plan

Delphi Goes Fishing – and is Harpooned by the EEOC

Wednesday, October 10th, 2007

Delphi, the auto parts maker working its way through bankruptcy, has a new problem. The U. S. Equal Employment Opportunity Commission (EEOC) has sued the company under the ADA for making illegal inquiries about employee medical conditions and retaliating against those who refused.
In 2004 Delphi implemented a policy requiring any and all workers returning from sick leave to sign releases permitting the company to access their medical records. While we can sympathize with the company’s desire to ensure that employees are fit for work, this policy goes way beyond any such concerns. Apparently, the company required employees to sign this release, even if they only missed a day or two. If employees refused to sign, they were terminated.
“The ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability unless the inquiry is shown to be job-related and consistent with business necessity,” the EEOC stated in the complaint.
The application of the ADA in this situation is a bit of a stretch. Perhaps the EEOC could not find any statute that really fit the circumstances. (HIPAA does not quite fit, either.) Delphi is not discriminating against the disabled – they are inappropriately perusing medical records, under the dubious reasoning that a short absence from work inherently involves high risk in returning to work.
The Need to Communicate
There are a number of circumstances following sick leave where an employer might need to talk to the employee’s doctor. For example, an employee might be prescribed a medication that impacts alertness and the ability to operate machinery. Or an employee with a non-work related injury might not be able to perform his or her regular job safely without some accommodation. Delphi’s mistake – and it’s a big one – is to require every employee taking sick leave for any reason to sign a medical release. This is not job and employee specific: it’s the kind of fishing expedition that confidentiality requirements explicitly prohibit.
Employers can and should secure an informed “release for full duty” from the treating physician when the need arises. When the circumstances require it, employers should communicate with doctors to ensure that the employee and co-workers are safe. Employers can and should require employees to disclose any medical conditions or prescriptions that directly impact the ability to perform the work safely (so that reasonable accommodations can be provided). But that is a long way from assuming that any and every absence is cause for examining medical records. That’s not business necessity; it’s an invasion of privacy. Whether filed under HIPAA, the ADA or some other statute, it’s one business practice that needs to stop immediately. If Delphi has any business savvy, they already will have taken steps to end this blatantly inappopropriate practice.

Posted in Business, Disability | 3 Comments »

Breach of Trust: the impact of the WTC disaster on workers compensation

Tuesday, October 9th, 2007

Our colleague Peter Rousmaniere is writing an important 4-part series on the World Trade Center and workers compensation that is being featured in Risk and Insurance. These articles are part of the publication’s in-depth focus on how Sept. 11 forever altered the workers’ comp landscape and eroded the trust implicit between employer and employee. The first two issues have been published and the remaining articles will be published in upcoming issues. The series should be mandatory reading for anyone involved in any aspect of workers comp. The first two articles in the series demonstrate how the magnitude of the disaster and its aftermath have exposed innumerable fault lines in the century-old insurance institution.
In Part 1: Up in Smoke, Rousmaniere discusses the appalling lack of any attention to safety in the mammoth WTC cleanup. As a work-related insurance event, the unprecedented number of deaths that occurred may represent the tip of the iceberg as the health problems of some 10,000 to 20,000 recovery workers are now beginning to emerge. Some of the problems in evidence include disabling and chronic rhinitis, “RADS,” or Reactive Airways Dysfunction Syndrome, and post traumatic stress disorder. (And this says nothing about the potential ill health effects on the nearly 250,000 local residents, workers and students.)
The workers – both on-the-clock employees and volunteers – labored daily in a highly toxic stew with a stunning lack of attention to the barest minimum of health and safety standards. Rousmaniere describes the abject failure on the part of environmental safety agencies to enforce any safety codes and offers some theories for why safety was so overlooked:

One theory is that assurances to the public about the absence of environmental hazards lulled workers and employers into indifference. Days after the attack, EPA and OSHA issued press releases saying Lower Manhattan was safe to enter.
New York City’s Department of Design and Construction personnel “are not being exposed to unhealthy levels of chemicals and that air quality around the WTC is generally good,” read an Oct. 17, 2001, OSHA communique.
Another theory is that the World Trade Center collapse decapitated the work safety leadership inside New York City’s government.
“In the collapse of the towers, essentially the whole emergency response command structure of the FDNY was lost, as well as a majority of the department’s (hazardous materials) instructors, technicians and specialists,” wrote NIEHS consultants Moran and Elisburg.

In Part 2: The Disease Within, Rousmaniere examines the insurance challenges that were faced in the immediate aftermath of the WTC event. In a single event, the death tally equaled 10 years of “normal” or expected work-related fatalities. He looks at some of the decisions that were made and some of the ongoing repercussions of those decisions, painting a portrait of a total collapse of the system as various weaknesses and flaws were exposed.
Rousmaniere calls this collapse “the dead elephant in the room no one wants to mention” and points to several root causes for the collapse:

  • Agonizingly slow administration of claims.
  • Barriers for disease claims–the very claims that disasters will create.
  • The proclivity for people to seek financial relief for work-related conditions through tort litigation and federal assistance.

He traces one disease claim to point out the complexities and the 3-year labyrinthine process that it has taken to come to any resolution. This does not bode well for the estimated 5,500 workers who will need ongoing care for respiratory diseases and the nearly 14,000 workers who need care for mental conditions.
In discussing these articles with Rousmaniere, he notes that while federal intervention in state workers compensation benefit structures has traditionally been very low, it may well take a big leap after the debacle of the World Trade Center aftermath is better understood. His series provides one of the most comprehensive examinations of the event to date. And we can see many of the same issues, such as the lack of attention to safety and prevention, in the aftermath of Katrina.
The final two parts in the Rousmaniere series will appear in Risk and Insurance in the October 15 and November 1 issues. We will be sure to bring them to your attention.

Posted in Compensability | Comments Off on Breach of Trust: the impact of the WTC disaster on workers compensation

Health Wonk Review: SCHIP Veto, Health Reform Prospects, and more …

Friday, October 5th, 2007

Jane Hiebert-White has posted a most excellent edition of Health Wonk Review at the Health Affairs Blog. Among other matters, she takes the pulse of the blogosphere in the aftermath of the presidential veto of the State Children’s Health Insurance Program (SCHIP). As the political debates about health care and health care policy heat up from now to the election, HWR offers a great bi-weekly snapshot.

Tags: , , ,
Posted in News roundups | Comments Off on Health Wonk Review: SCHIP Veto, Health Reform Prospects, and more …

News Roundup – Mining, MO, SC, ergonomics, and overtime

Thursday, October 4th, 2007

Mining hearings – Yesterday, families of deceased miners began testifying in a hearing on the Utah mine collapse sponsored by the House Committee on Education and Labor. In an emotional hearing, many testified that workers had been concerned about the safety of the mine but were reluctant to voice concerns too strongly for fear of losing their jobs. Much of the criticism is being directed at federal oversight authorities, most notably the Labor Department’s Mine Safety and Health Administration (MSHA). According to panel chairman Representative George Miller, neither the mining company, Murray Energy Corporation, nor MSHA has been fully cooperative in supplying information. Miller says that the Department of Labor cut critical staff, hired officials from the coal industry, failed to require wireless communications and underground rescue chambers for the miners, and failed to enforce compliance with rescue plans. Families say MSHA has failed to regulate the industry.
Missouri – Next month, Missouri will be facing a pending challenge to its controversial 2005 workers’ comp reforms, which we’ve discussed a few times before. In November, the Missouri Supreme Court will hear oral arguments in a lawsuit challenging the law’s constitutionality. The suit was brought by more than 70 employer groups. Suzanne King of the Kansas City Star offers a look at both sides of the issues in Missouri workers compensation reform and the upcoming challenge.
South Carolina – As a follow-on to its recent reforms, the Governor of South Carolina recently signed an executive order mandating the use of medical guidelines by the South Carolina Workers’ Compensation Commission when determining awards. This is an attempt to curtail the variations in benefit payments, which average 81% higher than benefits in other sates.
Ergonomics – HR World offers 10 easy tips for workstation ergonomics along with a huge list of resources. There are links to other workstation guides, ergonomic weblogs and sites, exercise and posture resources, ergonomics associations and consultants, office furniture, and and more.
Employment law – George Leonard at George’s Employment Blawg features a post on an emerging trend of overtime litigation. He cites a Business Week article which classifies the types of suits involved:

There are two basic categories of overtime claims. One arises because a company has misclassified employees as exempt from the wage and hour laws, and thus improperly failed to pay overtime. In some of these cases the workers have been classified as independent contractors, meaning the company doesn’t pay them benefits, either.
The second is a so-called off-the-clock claim, in which employees allege that some of the work they do is not recorded by the company, sometimes as an intentional way to keep them from accruing overtime.

It’s worth a read – forewarned is forearmed!

Posted in News roundups | Comments Off on News Roundup – Mining, MO, SC, ergonomics, and overtime

Linebacker with a Disability?

Wednesday, October 3rd, 2007

Odell Thurman plays linebacker for the Cincinnati Bengals. That is, he used to. He’s currently under a one year suspension for violating the NFL’s substance abuse policy: his first violation resulted in a four game suspension; that was followed by a full year off after he was arrested for DUI (blood alcohol at 0.18). He has filed suit with the EEOC claiming that the NFL has discriminated against him, based upon a disability.
Thurman claims that the league’s actions prove that he is either an alcoholic or the league perceives him to be one – either way, he might be protected by the ADA. However, Thurman has some formidable obstacles to overcome to win his case. As a professional football player, he operates under the rules of the NFL and its collective bargaining agreement. If you read the league’s substance abuse policy (over 20 pages long), you will see oh-so-carefully crafted wording governing drug and alcohol testing, first strike sanctions, second strike sanctions, complete with rules for determining how much of the signing bonus has to be returned after violations. The league appears to have followed its own procedures to the letter in suspending Thurman.
Under the ADA, active drinking is not protected. The ADA’s own guidance for employers states:

While people with alcoholism may be individuals with disabilities, the ADA still allows employers to hold them to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.

The NFL’s collective bargaining agreement gives the commissioner considerable leeway in determining punishment. Thurman’s case is presumably based on the fact that he is no longer drinking. He has probably completed some kind of treatment program, and thus might possibly qualify under the ADA definition of an individual with a disability: assuming, of course, that he is an alcoholic or the league believes him to be one (this is not at all clear) and assuming he is now under the ADA’s protection. That’s a lot of assuming. Somehow, it’s hard to imagine a 235 pound man who can bench-press over 400 pounds and who can shed the block of a 300 pound behemoth, and who presumably shows up sober for practice and for game day is, well, an individual with a disability, who cannnot perform “one or more major life activities” such as standing, breathing, walking, etc.
Even if Thurman can meet the ADA definition, he is still a long way from strapping on the pads. He would have to prove that the collective bargaining agreement itself discriminates against “disabled ” NFLers who are able to play (an oxymoron if there ever was one!). Many employers simply terminate individuals who violate substance abuse policies; such terminations do not violate the ADA, even if the individual is an alcoholic. Thurman certainly violated “company” policy, twice. He was suspended according to the league’s rules. He now claims his suspension must end because he has “recovered.” I don’t think so. His suspension is simply policy, bargained by his union and enforced equally on all players, whether technically “disabled” or not. The EEOC is unlikely to invalidate the players’s agreement (unless, of course, the judge is a Cincinnati Bengals fan).
I’m not without sympathy for Thurman. His mom died in an auto accident in 1993. His dad died in 2003 of liver and kidney failure (substance abuse involved?). He grew up in rural Georgia in his paternal grandmother’s household with 17 other people. He has had a tough life, which in turn has made him a very tough man. He is surely disadvantaged, but that does not mean he is disabled.

Posted in Disability | Comments Off on Linebacker with a Disability?

Bobbing for Drumsticks? Ohio Supremes Reverse Themselves

Tuesday, October 2nd, 2007

Back in January we blogged an unusual case from Ohio. David Gross was a 16 year old working at a Kentucky Fried Chicken. Despite safety training and warnings to the contrary, he insisted on cleaning the fryer his own way, filling it with water boiled under pressure. When he opened the fryer, he burned himself and two co-workers who came over to help. Because he wilfully disregarded safety directions, his claim for temporary total disability was denied. When the Ohio Supreme Court reviewed the case, they upheld the denial, equating Gross’s wilful disregard with job abandonment.
After giving themselves the summer to think it over, the court has reversed itself and found in Gross’s favor. Lawyers pointed out at the time of the initial ruling that the court seemed to be taking the “no fault” out of comp: by holding Gross accountable for his actions, they appeared to open the door to routine denials, based upon failure to follow safety instructions.
The court writes:”Although KFC appears justified in firing Gross for violating workplace rules, the termination letter established that his discharge was related to his industrial injury. Therefore, upon reconsideration, we hold that Gross’s termination was involuntary.”
I found the logic in the original decision a little hard to follow. The justices claimed that wilful disregard of safety instructions was the equivalent of “voluntary resignation.” But he was still working – that’s hardly a resignation. And while his own negligence was the sole cause of the injury, he was injured at work. Workers comp is no fault. Gross was at fault, but it doesn’t matter. The injury is compensable, pure and simple. KFC should have fired Gross before he got hurt!
Bobbing for Drumsticks?
Two justices dissented from the revised opinion, including a long-winded justice named O’Connor. Follow her convoluted reasoning trying to uphold the original opinion, if you wish. Lest you think judicial discourse is always dry and musty, I quote at length from the concurring opinion of Justice Pfiefer, who slams the dissenting O’Connor with literate panache:

The chicken Littles in dissent predict a workplace apocalypse, where employees bob for drumsticks in hot oil, ultimately resulting in an increase in the price of a bucket of “extra crispy.” Back in the real world, nothing has changed, due to this court’s wise rethinking of its prevous decision in this case. Gross was injured on the job. That he should receive workers compensation benefits for his injury is completely consistent with the philosophical underpinnings of the workers compensation system. The lead dissent is full of citations and fury signifying nothing – of the many cases cited in the dissent, not one comes anywhere close to even tangentially involving a worker being fired and denied workers compensation benefits for a violation of workplace rules that caused his own injury.

The lead dissent invites a system in which workers who make poor decisions (removing a guard,
working on a roof without scaffolding, overriding a control on a punch press) can end up being
denied benefits. That dissent’s Dickensian dreamworld – where presumably the Union workhouse, the Treadmill, and the Poor Law remain in full vigour – does not exist. We enjoy instead a constitutionally established system that renders fault irrelevant in compensating employees for their workplace injuries.

Nothing personal, Justice O’connor! Can I buy you a cup of coffee?

Posted in Compensability, State News | 5 Comments »

Initial rulings go against W.R. Grace in Libby suit

Monday, October 1st, 2007

In a case that the Justice Department described as as one of the most serious criminal indictments in U.S. history, the Ninth U.S. Circuit Court of Appeals ruled that criminal charges against W.R. Grace executives for “knowing endangerment” could be reinstated.
We recently blogged about asbestos-related illnesses surfacing in workers of a Texas vermiculite plant that was run by W.R. Grace. The plant processed vermiculite from the company’s infamous mine in Libby, Montana. We noted that seven W.R. Grace executives would be facing a criminal trial in September related to deaths that have occurred in Libby. The charges can lead to 15 years in prison on each count
Executives are being charged with exposing Libby residents to asbestos fibers for more than three decades, despite being aware of the dangers of the ore, as indicated by internal company documents. Workers were never alerted to those dangers.

“From 1963 until the early 1990s, Grace mined and processed a large supply of vermiculite ore on a mountain six miles outside Libby. Clouds of vermiculite, which contained tiny shards of dangerous asbestos, were inhaled by the miners and brought home to their families in their clothes.
The health crisis that followed didn’t become national news until 1999 when the Seattle Post-Intelligencer reported that hundreds of vermiculite miners and their families had died and thousands more had become ill. The U.S. Environmental Protection Agency immediately launched an emergency cleanup.”

Last year, a federal judge dropped some charges on a statute of limitations basis and excluded some evidence considered vital to prosecuting the government’s case. But on September 20, the federal Appeals Court reinstated conspiracy and environmental charges against the company and its executives. Prosecutors can now present evidence back to 1976. Studies show that the rate of asbestos-related illness in Libby is 40 times higher than the national average.
We will be following this case, which affects many workers, family members, and townspeople. We suspect that workers and family members of the more than 200 plants nationwide that were processing the ore will also be following this case. Those of us in Massachusetts remember another highly publicized environmental case involving W.R. Grace in Woburn, Mass., a case that had widespread attention due to a book and a film called A Civil Action.

Tags: , , , , , ,
Posted in Misc. | Comments Off on Initial rulings go against W.R. Grace in Libby suit

Newer Entries »