Archive for June, 2008

Health Wonk Review, scaffold survivor update, hand protection, and potential cancer cluster

Friday, June 13th, 2008

Jane Hiebert White has posted a great edition of Health Wonk Review: Washington Week at Health Affairs – and she notes that this issue coincides with Academy Health’s Annual Research Meeting held in DC this past week, a gathering based on the concept that health policy should be informed by research. In this HWR issue, one of the major themes centers on health care reform. It’s worth your time to check it out – it may be one of our biggest and most substantive issues yet.
Survival story – at the beginning of the year, we posted about miracle survivor Alcides Moreno who lived through a NY scaffolding collapse which sent him plummeting 47 stories. Today, the New York Post features a story about Moreno entitled 47-story guy walking tall. But not all the news associated with this story is good: his brother who was also on the scaffold was killed in the fall. Earlier this week, The New York Times covered the OSHA report about the accident, which found fault with City Wide Window Cleaning, the service that employed the Morenos, and Tractel, the firm that had repaired the scaffold.

OSHA issued five citations against City Wide for what it called serious violations. Three carried proposed fines of $7,000 apiece, the highest the agency can impose. One was for lack of a system to protect against falls — cables that would have left the Morenos dangling at the top of the building when the scaffold gave way.

Another citation against City Wide was for failing to train employees in how to inspect the scaffold, and for not training them to wear “personal protective equipment” before they stepped onto the rig. The article lists other charges against both companies. Commenting about the fines imposed, the Daily News editorializes that death comes cheap, noting that, “Financial penalties like that are meaningless as a deterrent to corner-cutting by contractors.”
Hand injury prevention – According to an article on hand injuries by Don Groce in Occupational Hazards, gloves can prevent injuries and reduce costs. Recent research shows that “The cost of hand injuries in just one sector of the construction industry is six times what it would cost those employers to offer every employee appropriate hand protection.” This preventive measure represents potential to reduce pain, reduce lost productivity, and save dollars. According to the CDC, hand injuries account for more than a million emergency department visits by U.S. workers per year. Groce’s article also discusses advances in glove manufacturing and various types of safety glove alternatives.
Dupont cancer cluster? – Celeste Monforton of The Pump Handle raises the question of whether there is a cancer cluster associated with Dupont in response to 19 cases of rare carcinoid tumors among DuPont employees, with 6 of the cases surfacing among workers at the Washington Works plant in West Virginia. She reports that adverse health effects have been associated with exposure to perfluorooctanoic acid (PFOA or C8), the chemical used to make Teflon and other non-stick surfaces.

Footnote on a Fatality

Thursday, June 12th, 2008

Yesterday we blogged the death of Lauro Ortega, who was crushed while excavating a building site in New York. We assumed that he was protected by workers comp, even as his lawyer pursued more lucrative remedies from the (recently indicted) employer, William Lattarulo. It appears that we were just a bit naive. Ortega was an illegal immigrant, working construction jobs on a cash-only basis. He labored long hours, six days a week, sending most of his earnings home to his family in Cuenca, Ecuador.
“He came to this country to work. He liked to do it. That was his love,” his brother is quoted as saying. Ortega lived in a tiny apartment by himself; he spoke to his wife and children every day. He had very little life outside of work, with Sundays reserved for church. He would have preferred to stay in Ecuador, but there was no work available. He came to this country for one simple reason: it’s where the jobs – and the money – are.
There will be readers who lack sympathy for Ortega. He was here illegally. He was paid under the table. He took his chances and reaped a harsh reward. At best, he is viewed with considerable ambiguity: he was here illegally, but to some degree our laws still protect him as a worker. His family will receive some compensation for his untimely death: either in the form of workers compensation (presumably paid out of the state fund) or tort liability stemming from his employer’s negligence. It will take some time, but eventually his family will receive financial support simply because Ortega died at work in America.
I am struck by the quiet desperation that brought Ortega to New York. I am impressed by his willingness to work hard, every day, and use his earnings to support a wife and two children back home. I am saddened by his sudden and very unnecessary death. And I am frustrated by the stalemate in Congress, which has been unable to construct a reasonable and just solution to what has become an intractable problem of enormous magnitude. There are over 12 million workers like Ortega, all of whom are here illegally and most of whom are working hard and doing jobs that need to be done.
Yes, they are illegal. And yes, we need their services. Two simple, contradictory facts. What, if anything, are we going to do about it?

Employers as Criminals

Wednesday, June 11th, 2008

William Lattarulo owns several buildings and vacant lots in Brooklyn NY. Back in March, his workers were digging a foundation for a commercial laundry at 791 Glenmore Ave, when a more experienced contractor warned Lattarulo of an immediate hazard: the excavation had reached a level below the foundation of the adjacent building. He advised Latturo to install underpins to make the excavation site more stable.
Instead of stopping the work, Lattarulo ordered his employees to keep digging. Moments later, the wall of the adjacent building collapsed, crushing Louro Ortega, a 30 year old laborer who had been on the job just two days.
“I don’t think I killed that kid,” Lattarulo is quoted as saying. “They’re just looking for someone to blame for all this” (an apparent reference to the spate of construction-related fatalities in the city).
The attorney for Ortega, Kenneth Halperin, says the accident never should have happened. “They failed to make sure the foundation wall was stable. No one checked anything.”
In the New York minute it took to snuff out the life of Louro Ortega, Mr. Lattarulo went from entrepreneur to defendant. He has been charged with manslaughter. Even if he is successful in avoiding jail time, he faces long and expensive days in court, trying to defend himself against charges of negligence.
Beyond Exclusive Remedy
Under most circumstances, workers comp offers the only recourse for a deceased employee and his family. Comp is an exclusive remedy. As we have blogged in the past, “substantial certainty” that an injury would occur is one of the factors that can help victims pierce the exclusive remedy shield. Lattarulo’s actions appear to be so egregious, so likely to result in bodily harm, the doors to tort liability have been thrown wide open.
For the time being, workers comp will cover the cost of Ortega’s funeral and provide his wife and two children with some modest level of support. Attorney Halperin will certainly not be content with that. He will pursue the big bucks that accompany criminal negligence. Mr. Lattarulo is about to learn that business owners can be held accountable for what in retrospect was an ad hoc and hasty decision. He thought he was just digging a hole for a new building. Through his dismal judgment, he dug a grave for an innocent worker and inadvertantly buried his own modest ambitions in the same rubble.

Driving and flash floods

Tuesday, June 10th, 2008

Flash flooding (video) in the central states over the last few days has resulted in numerous deaths. With “ordinary” flooding, there is a build up over time from rain or melting snow as rivers and bodies of water overflow their banks. Weather authorities and media have time to issue public alerts. But flash flooding is the rapid and extreme flow of water that occurs unexpectedly. It usually occurs within a few hours of a rain event. Flash flooding can often happen when a dam, levee, or embankment gives way or when an unusually heavy torrential rainfall occurs quickly. While some areas are prone to flash flooding, flash floods can occur unexpectedly almost anywhere given the right confluence of conditions.
Here are some facts about floods that many people don’t know:

  • Flash flooding is one of the most frequent weather-related killers in the U.S., resulting in more deaths than lightning or tornadoes
  • Nearly half of all flash flood fatalities are auto-related
  • Six inches of fast moving water can knock you off your feet
  • A depth of 18-24 inches of water will float your car, SUV, or pickup
  • 90% of all presidentially declared natural disasters include flooding
  • Flooding can occur in any of the 50 states or U.S. territories at anytime of the year

National Oceanic and Atmospheric Administration (NOAA) and the National Weather Service have embarked on an ongoing public education campaign which encourages people to Turn Around – Don’t Drown. Ironically, many victims who die in flood-related conditions do so because they are in a hurry to get home to safety! Here are some precautionary tips:

  • Be aware of and avoid areas on your way to and from work and home that are subject to flooding in heavy rain conditions.
  • Monitor weather conditions through NOAA or reliable news radio.
  • If you come upon roads or walkways covered with water, the depth of the water or the condition of the road underneath cannot be adequately assessed. Don’t drive or walk through water – turn around and find another route.
  • Don’t drive around barricades.
  • Be particularly alert at night.
  • If a vehicle stalls in water, leave it immediately and move to higher ground. Many vehicles are swept away, greatly increasing the danger for occupants.

How employers can help
Research demonstrates that those who take flash flood warnings seriously and have knowledge about the associated risks are less inclined to attempt to drive through water than those who don’t. Public education which emphasizes the seriousness of flash flood warnings and safe driving behavior can save lives. Employers can:

  • Know and be familiar with the Emergency Alert System and the various NOAA weather hazard warning categories
  • Monitor NOAA weather radio during unusual or potentially hazardous weather conditions
  • Know if your workplace is located in a high-risk area for flash flooding
  • Communicate flood warnings to workers, particularly at times when people are commuting to or from work
  • Help to raise awareness about the dangers of driving in flood conditions. (We’ve compiled some resources, below)
  • Equip your outdoor workers and frequent drivers with safety and prevention tips for weather-related hazards, including hot and cold weather hazards, and safety tips for working or driving in snow and ice, electrical storms, and flooded areas or flash floods
  • Issue special safety precautions and training for workers engaged in flood clean-up or rescue

Additional resources
Flood safety Awareness – The National Weather Service
Floods: the awesome power – PDF from the National Weather Service
Are you ready for a flood or a flash flood? – PDF from the American Red Cross
How to survive flash floods in your car

There Goes the Judge

Monday, June 9th, 2008

Back in November we blogged the saga of Judge Robert Restaino, a City Court judge in Niagra Falls NY. He apparently was having a terrible, horrible, no good, very bad day on March 11, 2005, when a cell phone went off in his courtroom, in violation of his judicial protocols. When no one fessed up to the crime, he jailed 46 people, most of whom had been waiting for disposition of domestic violence cases.
At the time of our first blog, New York’s judicial oversight commission had voted 9 to 1 to fire Restaino. He appealed. Now the State Court of Appeals, with a vote of 6 to 0 with one abstention, has upheld the termination. The Appeals Justices said they have “serious doubts that this breach in trust is reparable.”
Restaino is not without his supporters (two wrote in to comment on our original posting). It appears that his work, prior to this incident, was satisfactory. Niagra Falls District Attorney Michael Violante (excellent name for a DA!) was disappointed in the outcome. “He had a bad day and it’s cost him the bench…I think that it’s very unfair, frankly.” Even one of the judge’s critics, David Jay, a Buffalo civil rights attorney, thinks the outcome was too harsh. He believes that the courts need a disciplinary option between the extremes of dismissal and censure.
Aaron Besecker, author of the article in the Buffalo News, points out that at the time of the incident, Judge Restaino did not have a cell phone. Now that he is out of a job (and a comfortable salary of $113,900), he might want to invest in one. You always want to be accessible when someone calls with a lucrative job offer.

A Tree Falls in Rhode Island

Friday, June 6th, 2008

We have been following the case of Edgar Valasquez, the undocumented worker who was seriously injured by a chain saw in 2006. (Our two prior blogs are here and here.) His employer, Billy G’s Tree Service, failed to carry workers comp insurance. When Edgar showed up at the courthouse for his comp hearing, federal agents (apparently tipped off by Billy G) arrested and deported him.
The story appeared to have a reasonably happy ending. With a lot of community support, Edgar secured a temporary visa to plead his case. He was supposed to receive a $30,000 settlement. Now Billy Gorman has fired his attorney, Michael St. Pierre, claiming he never agreed to the deal. St. Pierre says he sent Gorman three “very detailed” letters specifying the settlement’s terms. (After working with the recalcitrant Gorman, St. Pierre has earned his sainthood!)
The settlement involves 10 monthly payments of $300 per month, for 30 years. Because he failed to carry insurance, Billy himself was on the hook for the payments. That’s a lot of tree trimming. Meanwhile, Edgar’s lawyer, Maureen Gemma, thinks the settlement was too easy on Billy: too small an amount, paid out over too long a period of time. She will undoubtedly take advantage of Billy’s balk to up the ante.
Gemma reports that Edgar, back home in Mexico, is “patient as always. He’s just a good person.” Probably not the way anyone would describe his former boss.
This all brings to mind the query, “If a tree falls in the forest and no one hears it, does it make a sound?” A tree has fallen in Rhode Island, felled by Billy G. and his crew. A lot of people heard it and are still listening, as the sound reverberates through dusty halls of the workers comp system.

News roundup: Cavalcade of Risk, disease mongering, claims adjusting, crane safety, and more

Thursday, June 5th, 2008

Congratulations to Hank Stern of InsureBlog on the the second anniversary of Cavalcade of Risk – check out some of the best of the web’s risk management posts from the last few weeks. Kudos to Hank for keeping this biweekly “best of” carnival going – it’s a great way to be introduced to new blogs.
Disease mongeringHealthLawProf Blog features an interesting item on the topic of disease mongering, defined as “the selling of sickness that widens the boundaries of illness in order to grow markets for those who sell and deliver treatments” or the corporate-sponsored creation of a disease. Apparently, this is an area of increasing concern in global public health circles.
Claims adjusting as a commodity – Joe Paduda at Managed Care Matters has a good post on high claims caseloads and why they should be important to an employer. Joe warns that employers who buy claims adjusting services on the cheap get what they pay for. A veteran claims adjuster adds remarks about how the profession is changing in the comments.
Crane deaths – Last week’s crane collapse in NY killed two workers, following quickly on the heels of a crane collapse in March that claimed the lives of 6 workers. According to OSHA, as many as 82 crane-related deaths occur each year. Celeste Monforton of The Pump Handle discusses the outdated OSHA crane safety standard and the political foot-dragging that has stalled any revisions to the standard:

“It’s a very sorry state of affairs for our national worker safety and health protection program when you have a representative committee of crane safety users and manufacturers who put together a CONSENSUS regulatory text to vastly improve protections for workers and the public, and the responsible agency can’t maneuver it through the bowels of the Department of Labor. This is really pathetic.”

WC costs – Iraq contractors – Richard Eskow of The Sentinel Effect discusses a recent congressional hearing on the Pentagon’s workers’ compensation program for civilian workers in Iraq and Afghanistan, which blasts AIG and other unnamed carriers for excessive profits.
Subrogation – In a recent subrogation case, the Massachusetts Supreme Court denied a suit by a company seeking to collect the increased cost of workers compensation from a third party. R.L. Whipple successfully recovered money for medical and wage replacement benefits that it paid to an employee who was injured when a dumpster owned by Pondview Excavation Corporation rolled off a truck. Whipple also sued Pondview for negligence to recoup a dividend that it lost from its insurer, as well as to cover the increases in the cost of workers compensation insurance it incurred in the wake of the injury claim. The Court denied this suit following the traditional rule “that purely economic losses are unrecoverable in tort … actions in the absence of personal injury or property damage.”
Heat stress – Some 4,000 Americans die each year from heatstroke, and many more are made ill from heat-related illnesses. BLR Safety Daily Advisor offers 6 ways to prevent heat stress at work.
Teen worker injuries – As a follow-up to our recent post on teen worker injuries, we recently found this report from Minnesota on teen worker injuries from 2003-2005 (PDF), which breaks down data on the most common industries for teen injuries, common injury characteristics, and the most common type of injuries. The five highest occupations for teen injuries by percent of claims were: food preparing and serving (21%), laborers/material movers (16%), health care support (10%), construction (9%), and production/assembly (8%).

Setting Limits in California

Wednesday, June 4th, 2008

California had a long-standing reputation as a workers compensation nightmare: not because injured employees received generous benefits – they did not – but because doctors and lawyers exploited the system to generate enormous fees. Governor Schwarzenegger, AKA the Terminator, put an end to that with his extensive 2003-04 reforms. In the effort to contain costs, the reforms for the first time brought managed care tools into the comp system. The bottom line for employers has improved dramatically.
Among the many provisions of the reform was a limit on physical and occupational therapy treatments for an injury. Injured workers are now limited to 24 visits. Jose Facundo-Guerrero, a worker at a nursery in Half Moon Bay, challenged the limits on constitutinal grounds, alleging that he was entitled to the “full provision for such medical, surgical, hospital and other remedial treatment” promised in the CA Constitution. Jose had visited his chiropractor 76 times and he wanted the carrier to pay.
The First District Court of Appeal in San Francisco has upheld the limits in the comp reform package. They found that the Constitution does not require “unlimited” treatments and leaves the details up to the legislature.
Arbitrary Limits
There is no question that the 24 visit limit is arbitrary. This one size does not fit all. On the other hand, chiropractic treatment can be addicting. It feels good. Jose went 76 times and might well have continued on indefinitely, had the treatments been compensable.
One aspect of the reform language caught my eye: the 24 visit limit can be exceeded if the employer agrees. This raises an intriguing possibility. If valued employees require extensive physical therapy that goes beyond the arbitrary limit, enlightened employers might well authorize the carrier to cover a specific number of additional visits. This makes sense as long as it keeps the employee happy and productive.
As with so many workers comp issues, law makers struggle to find the middle ground between no limits and severely curtailed treatments. What’s missing is reliable and effective lines of communication among employers, their employees, medical providers and insurance carriers. The rigid limits on treatment in California are apparently legal, but that does not mean they are fair. There is no question that the reforms of 2003-04 have reduced costs. Ironically, injured workers were not the primary beneficiaries of the state’s pre-reform, out-of-control comp system. And it now appears likely that these same workers will pay the price for reforms as well.

Firefighters revisited: Presumption’s Slippery Slope

Tuesday, June 3rd, 2008

In yesterday’s blog, my colleague Julie Ferguson discussed the issue of compensible illness for firefighters. Forty states already have statutes giving the benefit of the doubt to firefighters: if they become ill from many forms of cancer or heart disease, the illness is presumed to be work related. The burden of proof (and “burden” is surely the operative term) falls to the municipality to prove that the illness is not work related. Nevada has taken it a step further: in the police department, any heart attack is considered work related, with no consideration of personal habits (smoking, overweight, high fat diet) or family history. That is a very generous – and potentially expensive – public policy.
As with any medical issues, you have to examine the evidence. Where it can be demonstrated that specific occupational exposures lead to specific illnesses, a basis for presumption is established. That is a fundamental of evidence based medicine. But as a matter of public policy, it is extremely hazardous to build presumption into the comp statutes. There are many forms of cancer. There are many risk factors for heart disease. By establishing a presumption that virtually any illness related to these dreaded diseases is work related, state and local governments are exposed to an enormous – and open-ended – liability. To be sure, there is always a risk that a deserving firefighter might have to undergo lengthy litigation to prove his or her illness is work related. But that process – universal in the comp system – is the necessary price we pay for participating in comp’s unique disability coverage. As much as I admire the public service contributions of police and fire personnel, I believe that they should operate under the the same rules that cover all employees: their illnesses are compensable if they are demonstrably work related. In most instances, this requires a case by case review.
Follow the Money
The issue here is not medical treatment: these illnesses, if determined to be unrelated to work, would be covered under conventional health insurance. (To be sure, it’s cheaper for the claimant to be treated under the comp system, as there are never any co-pays or deductibles.) As is often the case with comp, the real issue is indemnity. For firefighters, that usually means wage replacement that is 100% of their usual pay, tax free. In other words, a firefighter on workers comp makes more than one on active duty. When you combine a presumption of compensability with an already generous indemnity benefit, you have created a bitter and expensive cocktail (with state and local taxpayers picking up the tab).
Virtually all municipalities operate under a “zero sum” budget, where increased expenditures in one area (expanded coverage for illnesses under comp) become a net subtraction in another (municipal services, public safety, schools, water supplies, etc.). It may seem politically expedient to speed compensability for some of our most valued local employees (police and fire), but governments do this at great risk to the bottom line, not to mention reducing all other valued municipal employees (city workers, teachers, public works) to second class citizens.
In a word, a presumption of compensibility is a slippery slope toward budget chaos. We have an obligation to protect our public protectors. But offering presumptive comp coverage for virtually any illness is an invitation to fiscal ruin.

Firefighters and presumptive disability statutes

Monday, June 2nd, 2008

Sally Roberts has written a good article on firefighters and state workers comp laws in the recent edition of Business Insurance. Regardless of profession, illnesses have traditionally posed more of a compensability challenge than an out-and-out injury. When someone suffers an injury, it is generally a discrete event so matters are usually black and white as to compensability. Because illnesses are progressive, it can be more difficult to associate them with a work exposure – particularly illnesses like cancer that might have other contributing life factors. For most professions and in most states, the burden of proof is on the employee to demonstrate the work-relatedness of an illness. But as Roberts notes in her article, more than 40 states have some type of presumptive disability statutes for firefighters. According to the International Association of Firefighters, this means that the burden of proof shifts from the employee having to prove that the illness is work related to the employer having to prove that the illness is not work related. In most states the presumption is rebuttable, but in some states it is not.
Proponents point to studies documenting that firefighters are at heightened risk of certain diseases and illnesses, such as infectious disease, heart disease, lung disease, and cancer. Opponents see presumptive laws as favoring one class of workers over another. Plus, opponents also cite the cost and inefficiency of treating medical conditions under the workers comp system, which has rudimentary managed care in comparison to the group health system.
It’s a sticky dilemma. Putting the burden of proof to establish the work-relatedness of an illness on the employee often seems to be an unfairly high hurdle for certain high-risk, high-exposure professions; employers face a similarly high hurdle in trying to establish proof that an illness is not work related. Firefighters are exposed to danger and toxins as a part of their normal work conditions. Determining whether the job exposure or a nightly diet of hamburgers was the cause of a heart condition is work for a Solomon. Establishing which exposures are work-related and which are more likely due to ordinary life circumstances is near impossible. This seems to be a good test area for the “24-hour coverage” concept. Perhaps high risk, essential service public personnel such as firefighters and police need to be treated more like the military in terms of being afforded comprehensive medical care for both on- and off-the-job injuries and illnesses.
The International Association of Firefighters has clickable maps with links to presumptive laws related to firefighters in U.S. and Canada.